Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 10 October 2017(1)

Case C-363/16

EuropeanCommission

v

HellenicRepublic

(Failure of a Member State to fulfil obligations - State aid - Obligation of recovery - Article 108(2) TFEU - Measures to be taken by the Member States - Insolvency proceedings - Registration of the unlawful State aid in the schedule of liabilities - Cessation of the undertaking’s activities - Suspension of the public auctions of the undertaking’s assets)

1.        In February 2012, the European Commission adopted a decision (2) finding certain measures of financial support provided by Greece to United Textiles S.A. to be State aid incompatible with the internal market and requiring Greece to recover the aid. It now seeks a declaration, under Article 108(2) TFEU, that Greece has failed to comply with that decision within the prescribed period.

2.        Greece argues that, since the recipient of the aid was declared insolvent by court order of July 2012 and its activities have ceased, the distortion of competition caused by the unlawful State aid the recipient enjoyed has been removed. It follows that Greece has taken all the measures necessary to implement the decision and that it is not in default under it.

 Legal context

3.        Article 108(2) TFEU provides:

‘If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the internal market having regard to Article 107, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission.

If the State concerned does not comply with this decision within the prescribed time, the Commission or any other interested State may, in derogation from the provisions of Articles 258 and 259, refer the matter to the Court of Justice of the European Union direct.

…’

4.        Council Regulation (EC) No 659/1999 (3) set out detailed rules for the application of the legislation governing unlawful State aid.

5.        Recital 6 of that regulation stated that ‘in accordance with Article [4(3) TEU] Member States are under an obligation to cooperate with the Commission and to provide it with all information required to allow [it] to carry out its duties under this Regulation’.

6.        According to recital 13:

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

7.        Article 14 of that regulation, entitled ‘Recovery of aid’, provided:

‘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 … The Commission shall not require recovery of the aid if this would be contrary to a general principle of [EU] law.

...

3.      Without prejudice to any order of the [Court of Justice] 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 [EU] law.’

 Background to the dispute and the recovery decision

8.        United Textiles is a Greek textile company which produced clothing, fibre and fabric. The recitals of the recovery decision record that since at least 2004 its situation has been deteriorating steadily and its plants have not been operating since 2008, because of a lack of working capital. Almost all its bank loans have been overdue since 2008. According to the company’s annual reports, production has almost completely stopped since March 2009; and the trading of its shares on the Athens Stock Exchange has been suspended since February 2010. (4)

9.        In 2007, Greece granted United Textiles a guarantee in connection with the rescheduling of an existing bank loan and the issuing of a new bank loan (‘the 2007 guarantee’). In 2009, Greece rescheduled the company’s social insurance debts for the period from 2004 to 2009 (‘the 2009 rescheduling’). (5)

10.      On 22 February 2012, the Commission adopted the recovery decision, which it notified to Greece on 23 February 2012. By Article 1(1) of that decision, the Commission declared that the 2007 guarantee and the 2009 rescheduling constituted unlawful State aids incompatible with the internal market. (6) The total amount of the unlawful aid was estimated at EUR 30.57 million. (7)

11.      Article 2 required Greece to recover the unlawful State aid, with interest, from United Textiles.

12.      Article 3 provided that recovery of the aid was to be immediate and effective and that the recovery decision should be implemented within four months of the date of its notification.

13.      In addition, Article 4(1) required Greece to submit the following information to the Commission, within two months of the notification of the decision:

‘(a)      the total amount (principal and recovery interests) to be recovered from the beneficiary;

(b)      a detailed description of the measures already taken and planned to comply with [the recovery decision];

(c)      documents demonstrating that the beneficiary has been ordered to repay the aid’.

14.      According to Article 4(2), ‘Greece shall keep the Commission informed of the progress of the national measures taken to implement [the recovery decision] until recovery of the aid … has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with [the recovery decision]. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiary.’

15.      Following the notification of the recovery decision, the competent Greek authorities certified a debt in the amount of EUR 19 181 729.10 (corresponding to the 2007 guarantee) on 21 June 2012. On 19 July 2012, by judgment of the Polymeles Protodikeio Athinon (Court of First Instance, Athens), United Textiles was declared insolvent.

16.      On 29 August 2012 the competent Greek authorities certified a further debt in the amount of EUR 15 827 427.78 (corresponding to the 2009 rescheduling).

17.      The debts were notified to the registry of insolvencies on 3 August 2012 (the 2007 guarantee) and on 14 September 2012 (the 2009 rescheduling).

18.      The first creditors’ meeting took place on 18 December 2012. The last notification of the debts arising from the aids to be recovered took place on 7 February 2013. The schedule of liabilities was finalised on 11 September 2013.

19.      Beginning in 2013, assets of United Textiles were sold by way of public auction.

20.      Between May 2012 and May 2015, the Commission and Greece exchanged a number of letters concerning the execution of the recovery decision and the course of the insolvency proceedings.

21.      By emails of 7 and 17 December 2015, the insolvency administrator of the United Textiles insolvency proceedings informed the Commission that attempts were being made by Greece to re-launch the company’s business and asked the Commission to what extent it supported this project. By letter of 18 December 2015, the Commission asked Greece to clarify whether there was a project to suspend the insolvency proceedings of United Textiles and to re-launch the business.

22.      By Act of legislative content of 30 December 2015 (‘the ALC’), it was resolved that ‘the public auctions for the sale of the assets of the public limited company ... [United Textiles] are suspended for a period of six months from the date of publication in the Official Gazette’. (8)

23.      Greece responded to the Commission’s letter of 18 December 2015 on 19 January 2016, confirming that the sale of assets had been suspended. It provided the Commission with further information on that matter by letter of 11 April 2016.

24.      The public auctioning of the company’s assets was effectively suspended from the date of publication of the ALC for a period of six months until 30 June 2016. The Greek Government confirmed at the hearing that the auctions for the sale of United Textiles’ assets had recommenced in September 2016.

 Procedure and form of order sought

25.      On 30 June 2016 the Commission lodged the present application.

26.      The Commission asks the Court to declare that by failing to take, within the prescribed period, all the measures necessary to recover from the recipient the State aid declared unlawful and incompatible with the internal market by Article 1(1) of the recovery decision and by failing to inform the Commission sufficiently of the measures taken, in accordance with Article 4 of that decision, Greece has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision as well as those arising under the Treaty on the Functioning of the European Union.

27.      At the hearing on 21 June 2017, the Greek Government and the Commission presented oral argument and responded to the questions put by the Court.

28.      In its application, the Commission noted that ‘from a formal point of view’ Greece had not ensured that the obligations arising from the recovery decision had been fulfilled at the date of expiry of the prescribed period (see point 39 below). However, it devoted the major part of its written and oral submissions to the suspension of the sale of the company’s assets three years later on 30 December 2015.

29.      When asked at the hearing to specify what it alleged was Greece’s failure to fulfil its obligations, the Commission identified three main grounds on which Greece had, in its view, infringed the recovery decision, namely: (i) by failing to recover the aid within the four-month period laid down in the decision (United Textiles having been declared insolvent after that deadline had expired); (ii) by failing to inform the Commission fully of the progress of the recovery of the unlawful State aid, both by not providing to the Commission the information required by Article 4(1) of the recovery decision within two months of notification of that decision and by not informing the Commission that the public auctions had been suspended in December 2015; and (iii) by suspending, by the ALC, the public auctions of United Textiles’ assets.

 Preliminary remarks

30.      It is important at the outset to clarify certain aspects of the procedure set out in Article 108(2) TFEU, the relevant date for assessing the existence of an infringement under that procedure and the nature of the obligation imposed on Member States by a recovery decision.

 The procedure under Article 108(2) TFEU and the burden of proof

31.      When a Member State does not comply with a recovery decision, the Commission or another Member State may, in derogation from Articles 258 and 259 TFEU, refer the matter to the Court of Justice under Article 108(2) TFEU. In contrast to Article 258 TFEU, that latter option does not provide for a pre-litigation phase. (9)

32.      The choice as to which procedure should be adopted in any given case is a matter for the Commission. (10) The Court has held that the means of redress provided for by Article 108(2) TFEU is merely a variant of the action for a declaration of failure to fulfil Treaty obligations, specifically adapted to the special problems which State aid poses for competition within the internal market. (11) In the present case, the Commission has brought the action under Article 108(2) TFEU.

33.      Under that provision, access to the Court is quicker and easier as the formal exchange of views with the Member State and (as the case may be) with other interested parties has already taken place under the administrative procedure which led to the adoption of the relevant Commission decision. (12) The conduct of a Member State against which an action under Article 108(2) TFEU is brought must be assessed solely in the light of the obligations imposed on that Member State by that decision. (13)

34.      Regardless of the Commission’s choice of procedure, it is settled case-law that, in proceedings for failure to fulfil an obligation, ‘it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to provide the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption’. (14) On the other hand, once the failure to recover the unlawful State aid or a part of it has been established, it is then for the Member State to substantiate the reasons justifying that failure. (15)

 The relevant date for assessing the existence of an infringement

35.      In proceedings such as the present case, where the national procedures for the recovery of the unlawful State aid have been running for several years, it is crucial to establish the relevant date for assessing the existence of an infringement. In that respect, the choice between the general infringement procedure and the procedure under Article 108(2) TFEU is not without consequence. Since the latter does not require the Commission to issue a reasoned opinion, it follows that the relevant date for assessing whether there has been a failure to comply with obligations cannot (as in Article 258 TFEU proceedings) be the date set for compliance with such an opinion.

36.      Instead, according to settled case-law, the relevant date in Article 108(2) TFEU proceedings is the date set in the decision by which the State aid must be recovered or, where appropriate, the date subsequently fixed by the Commission. (16) Subsequent events which occur after the relevant date cannot be taken into account in assessing the existence of an infringement, or lack thereof. (17)

37.      In the present case, Article 3(2)of the recovery decision set a period of four months from the date of notification of the decision. The Commission did not subsequently fix a new period. Accordingly, the relevant date should be four months from 23 February 2012, the date of notification of the decision, that is to say, 23 June 2012. (18) That being a Saturday, the relevant date is 25 June 2012.

38.      Additionally, Article 4(1) of the recovery decision required Greece to provide specific information to the Commission within two months of the date of notification, that is to say, by 23 April 2012.

39.      The relevant dates for assessing whether Greece infringed the obligation to provide information and the obligation to recover the State aid are therefore 23 April 2012 and 25 June 2012, respectively.

40.      The Commission submitted at the hearing that the suspension of the public auctions for the sale of United Textiles’ assets by the ALC on 30 December 2015 is a second relevant date for assessing the existence of an infringement.

41.      In that respect, the Commission further argued at the hearing that it is the practice of this Court to make a finding that a Member State which has failed to comply with a decision requiring it to recover State aid by the relevant date is committing a continuing infringement. (19)

42.      I do not accept that reading of the case-law. Whilst it is true that in some of those cases the Court noted that the infringement continued after the relevant date and until the hearing, the actual declaration made by the Court was limited to the existence of an infringement at the end of the period stipulated in the Commission’s decision. (20)

43.      It is moreover clear from Commission v Belgium, (21) that events subsequent to the date specified in the decision ordering the recovery of the unlawful State aid are irrelevant for the purposes of ascertaining the existence of an infringement under the Article 108(2) TFEU procedure. That said, the Member State remains under a continuing obligation after that date to effect the recovery of the unlawful aid, under the duty of sincere cooperation. (22)

 The nature of the obligation to recover

44.      The obligation to recover unlawful State aid stems from Article 108(2) TFEU, as applied for the purposes of the present case by Regulation No 659/1999. The Court has consistently held that ‘recovery of illegal aid is the logical consequence of a finding that [the aid] is illegal’. (23) Recovery serves to restore the status quo ante in so far as possible and to eliminate anticompetitive advantages created by unlawful State aids. (24)

45.      The obligation to recover is an obligation as to the result to be achieved. (25) Regulation No 659/1999 requires Member States to recover unlawful State aids in accordance with national procedures without delay, whilst the implementation of the recovery decision must be ‘immediate and effective’. (26) In that respect, according to well-established case-law, Member States are free to choose the means of fulfilling the obligation resulting from the recovery decision, provided that the measures chosen do not adversely affect the scope and effectiveness of EU law. (27)

46.      Recovery must not only be in full but also in time - that is, within the period stipulated in the decision (or the date subsequently fixed by the Commission); delayed recovery cannot satisfy the requirements of the TFEU. (28)

47.      The Court has consistently stated that only absolute impossibility excuses a failure to recover unlawful State aid. (29) The case-law construes that defence strictly, refusing to accept that ‘mere apprehension of internal difficulties’ amounts to absolute impossibility. (30) Member States may not plead requirements of their national law, such as the impossibility to recover under national law; (31) a legal vacuum; (32) administrative or technical difficulties; (33) or the legal, political or practical difficulties involved in implementing the decision, without taking any real steps to recover the aid from the undertakings concerned and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome. (34)

48.      May a Member State argue that because the financial situation of the beneficiary does not permit the recovery of the aid, that constitutes an ‘absolute impossibility’ to recover?

49.      The Court has held that that situation does not constitute proof that implementation is impossible, since the liquidation of the company can also serve to achieve the aim of abolishing the aid. (35) The absence of recoverable assets is the only way to show the absolute impossibility of recovering the aid; and it is incumbent on the State to seek to have the undertaking wound up so that it may enforce its claims against the assets, if there are any and if their ranking permits it. (36)

50.      The defence of absolute impossibility applies to the result to be achieved: the recovery of the unlawful aid. If it could be invoked in respect of the manner in which recovery were effected, it would be all too easy for a Member State to choose a process for recovering the unlawful aid that proved impossible and then claim that it was absolved from its obligation to recover the aid. (37)

51.      Certain complementary duties arise if a Member State encounters difficulties in recovering the aid. A Member State may rely on the defence of absolute impossibility only if it has brought those problems to the attention of the Commission and has tried to resolve the difficulties it is facing. (38) Thus, a Member State encountering unforeseen and unforeseeable difficulties or becoming aware of consequences overlooked by the Commission should 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 EU institutions a duty of sincere cooperation which underlies, in particular, Article 4(3) TEU, work together in good faith with a view to overcoming those difficulties. (39)

 The failure to fulfil obligations

 The obligation to recover the State aid

 Arguments of the parties

52.      In its application, the Commission claims that Greece did not, within the prescribed period, recover the unlawful aid.

53.      The Commission submits that, when full recovery of the unlawful State aid is not possible because the undertaking is in difficulty or insolvent, the Member State requires to register the liability relating to the repayment of the aid in the schedule of liabilities of that undertaking in the context of the insolvency proceedings. The undertaking must definitively cease its activities. In the present case, Greece did not fulfil those obligations by the expiry of the prescribed period, namely 25 June 2012.

54.      Greece argues that United Textiles was declared insolvent on 19 July 2012 and its activities have ceased. The distortion of competition caused by the competitive advantage which the recipient of the aid has enjoyed has therefore been removed, in accordance with the recovery decision.

 Assessment

55.      In a case such as this, where the undertaking concerned does not have the necessary funds to repay the unlawful State aid, the obligation to recover remains. It is indeed firmly established in the Court’s case-law that the obligation to recover unlawful State aid extends to recovery from recipients, such as United Textiles, which are in difficulty or insolvent. (40)

56.      In such a case ‘the restoration of the previous situation and the elimination of the distortion of competition resulting from the unlawfully paid aid may, in principle, be achieved by registration of the liability relating to the repayment of the aid in question in the schedule of liabilities’. (41) If necessary, the Member State itself - as a creditor or shareholder of the company - must institute proceedings for its winding-up. (42)

57.      Where the Member States’ authorities are unable to recover the full amount of the aid, registration of the liability in the schedule of liabilities, of itself, is not enough. The insolvency proceedings must ‘result in the winding-up of the undertaking which received the unlawful aid, that is to say, in the definitive cessation of its activities’. (43)

58.      It follows that, when the State cannot recover the full amount of the unlawful aid because of the financial situation of the undertaking, (i) the undertaking must be declared insolvent, and (ii) the liability relating to the repayment of the aid in question must be registered in the schedule of liabilities. When it continues to be impossible to recover the full amount of the aid, the insolvency proceedings must result in the winding-up of the undertaking and the definitive cessation of its activities. Only then is the recovery obligation deemed to be fulfilled.

59.      A further question concerns the time at which the recovery decision must be implemented. It seems unlikely that the various steps in an insolvency procedure, from the initial petition for insolvency to the declaration of insolvency, to the winding-up of the beneficiary and the definitive cessation of its activities, will normally take place within the four-month period usually set by the Commission for the recovery of unlawful aid. In such circumstances, how much may reasonably be expected from a Member State that seeks to comply in full and in time with a recovery decision?

60.      The Court considers that it is the registration of the liability resulting from the unlawful State aid in the schedule of liabilities that is the appropriate means to achieve the elimination of the distortion of competition and requires that that should take place within the period prescribed by the recovery decision. (44)

61.      The Member State is thus expected to initiate the insolvency proceedings (if no other creditor has already done so) and notify its liabilities to the insolvency administrator and have them registered in the schedule of liabilities according to national procedures within the period prescribed by the recovery decision.

62.      It may be that, in a particular case, circumstances or reasons related to internal procedures prevent the Member State from registering the liability in the schedule of liabilities within the period prescribed. In that event, the Member State should, according to this Court’s case-law, submit that difficulty to the Commission for consideration, together with proposals for suitable amendments to the decision at issue. Both the Member State and the Commission must respect the duty of sincere cooperation and work together in good faith. (45)

63.      It follows that when a Member State has difficulties in respecting the schedule set by the recovery decision because of the particularities of insolvency proceedings, it must inform the Commission fully and ask for a supplementary period for compliance with that decision, duly justifying the extra time sought. In my view the Commission, which is also bound by the duty of sincere cooperation, is then under an obligation to afford a reasonable extension of the period for recovery when the circumstances of the case demand it.

64.      In the present case it is common ground that United Textiles was not declared insolvent until 19 July 2012. The amounts to be recovered were notified to the registry of insolvencies on 3 August 2012 (the 2007 guarantee) and on 14 September 2012 (the 2009 rescheduling). Greece stated at the hearing that the last notification of a liability related to the unlawful State aid took place on 7 February 2013. The schedule of liabilities was finalised on 11 September 2013. All those events took place after the relevant date of 25 June 2012.

65.      Although all the steps taken for the implementation of the recovery decision (the declaration of insolvency of United Textiles, the notification of the liabilities to the registry of insolvencies and the establishment of the schedule of liabilities including those arising from the unlawful Sate aid) took place after the period for recovery prescribed by the Commission, Greece did not ask the Commission for additional time to implement the recovery decision in accordance with its national procedures. The implementing measures took thus place after the relevant time.

66.      The infringement is therefore established.

 The obligation to keep the Commission informed

 Arguments of the parties

67.      The Commission claims that Greece did not inform it sufficiently of the measures taken to implement the recovery decision. It contends that Greece failed to inform the Commission beforehand of the suspension of the public auctions for the sale of United Textiles’ assets by the ALC. Furthermore, Greece has not provided any information about the evolution of the case since the letter of 11 April 2016.

68.      Greece argues that it has kept the Commission sufficiently informed of the measures it took to implement the recovery decision.

 Assessment

69.      Article 4 of the recovery decision imposed specific reporting requirements on Greece. First, Greece was required to provide three specific pieces of information within a two-month period from the date of notification of the decision (Article 4(1)). Second, Greece was subject to a continuing obligation to keep the Commission informed of the progress of the measures taken for the recovery of the aid until the aid had been recovered in full (Article 4(2)).

70.      The Court has held that, where a Member State fails to take the measures necessary to recover State aid within the period prescribed, it also fails to fulfil its obligation to inform the Commission of the measures taken. (46) Since Greece took no steps to implement the recovery decision by 23 April 2012, it also cannot have informed the Commission about them.

71.      Accordingly, the failure to fulfil that obligation is also established.

72.      I should here record that the Greek Government confirmed at the hearing that the three specific pieces of information required by Article 4(1) of the recovery decision were not provided by 23 April 2012. In addition, it appears from the correspondence between the parties that the Greek Government did not make contact with the Commission until May 2012 - again, that is after the deadline.

73.      As regards the obligation to keep the Commission informed of the progress of the measures taken for the recovery of the aid until the aid had been recovered in full (Article 4(2) of the recovery decision), the parties presented to the Court a number of letters that show frequent correspondence between Greece and the Commission since May 2012. By those letters Greece informed the Commission of the evolution of the insolvency proceedings of United Textiles. However, Greece did not inform the Commission beforehand about the adoption of the ALC suspending the public auctions of United Textiles. It was only after the Commission (by letter of 18 December 2015) asked Greece to clarify the situation, that Greece informed the Commission (by letter of 19 January 2016) that it had suspended the public auctions for the sale of United Textiles’ assets for a period of six months in order to assess a plan to re-launch the business.

74.      In my view that is an infringement of Article 4(2) of the recovery decision.

75.      I conclude therefore that Greece failed to inform the Commission sufficiently as required to do by Article 4 of the recovery decision, of the measures taken to recover the unlawful aid.

 The suspension of the public auctions and the possibility to re-launch United Textiles’ activities

76.      The suspension of the public auctions of United Textiles’ assets took place after the relevant date for assessing the existence of an infringement (see points 35 to 43 above). It therefore cannot be taken into account in that respect. However, since an important part of the parties’ submissions concerned this topic, I shall address it briefly for the sake of completeness.

77.      The Commission submits that recovery must be made according to the national procedures and must be immediate and effective. When full recovery of the unlawful State aid is not possible and the Member State chooses the path of insolvency proceedings, those proceedings must, in fine, result in the winding-up of the undertaking and the definitive cessation of its activities. The suspension of the public auctions for the sale of United Textiles’ assets stops the process of liquidating the undertaking, which is supposed to be irreversible, and slows down the recovery of the unlawful State aid.

78.      Greece argues that United Textiles had ceased its activities and the competitive advantage it had received had therefore disappeared. Neither the case-law nor the Commission’s practice require that the insolvency proceedings must inevitably result in the winding-up and the dissolution of the undertaking concerned. The suspension of the public auctions lasted only for six months, after which the liquidation proceedings continued normally. Furthermore, the project to re-launch United Textiles’ activities included provision for the immediate recovery of the State aid.

79.      May a Member State recovering unlawful State aid in the context of insolvency proceedings suspend those procedures in order to examine a plan to re-launch the beneficiary’s activities?

80.      In order to answer that question several principles should be borne in mind.

81.      First, the recovery must be done without delay and the execution of the recovery decision must be immediate and effective. (47)

82.      Second, Member States are free to choose the means of fulfilling the obligation to recover, provided that the measures chosen do not adversely affect the scope and effectiveness of Union law and make the recovery practically impossible. The measures adopted by the Member States must be appropriate for the purpose of establishing the normal conditions of competition which were distorted by the grant of the unlawful aid. (48)

83.      Third, the specific obligations regarding the recovery of State aids and the more general duty of sincere cooperation under Article 4(3) TEU are closely entwined; Article 4(3) shapes the way in which a Member State must act during the recovery process. (49)

84.      Finally, the overall aim of the recovery of unlawful State aid, that is to say the elimination of the distortion of competition, (50) is to be considered in conjunction with the general aims of the EU, laid down in Article 3 TEU, and in particular balanced economic growth and a highly competitive social market aiming at full employment as pillars of the sustainable development of the EU. (51)

85.      Against that background, I disagree with the view expressed by the Commission at the hearing, that recovery via insolvency proceedings is a one way street that must inevitably lead to the winding-up of the beneficiary.

86.      First, this Court’s case-law expressly states that, in order to meet the recovery obligation, the insolvency proceedings must ‘result in the winding-up of the undertaking which received the unlawful aid, that is to say, in the definitive cessation of its activities’; but that obligation only bites ‘where the State authorities are unable to recover the full amount of the aid’. (52)A contrario, where the full amount of the aid can be recovered during the course ofthe insolvency proceedings, the winding-up of the undertaking and the definitive cessation of its activities are no longer required.

87.      Second, the proposition that the State aid rules, within a system that aims at economic growth and full employment, should mechanically require undertakings that could otherwise be viable to cease operating, with the consequent loss of jobs, is inherently repugnant.

88.      Third, as Greece rightly notes, the Commission itself is on record as stating that ‘where a continuation plan is proposed … implying a continuation of the activity of the beneficiary, the national authorities responsible for the execution of the recovery decision can only support this plan if it ensures that the aid is repaid in full within the time limits foreseen in the Commission’s recovery decision’. (53) True, the Commission goes on to state that ‘in particular, the Member State cannot waive part of its recovery claim, nor can it accept any other solution that would not result in the immediate ending of the activity of the beneficiary. In the absence of a full and immediate repayment of the unlawful and incompatible aid, the authorities responsible for the execution of the recovery decision should take all measures available to oppose the adoption of a continuation plan and should insist on the ending of the activity of the beneficiary within the time limit set in the recovery decision’. (54) That does not alter the fact that the Commission itself endorses as acceptable a continuation plan leading to full and timely recovery of the unlawful State aid previously paid.

89.      I therefore consider that in principle a Member State may envisage relaunching the activities of the beneficiary of an unlawful State aid in circumstances such as those of the present case.

90.      However, I suggest that at least the following minimum conditions would have to be respected: (i) the project must permit the full recovery of the amount of the unlawful State aid; (ii) the procedure must be in accordance with national law; (iii) the Commission must be fully informed in advance; (iv) the duty of sincere cooperation and the effectiveness of EU law must be respected; (v) the Commission must agree to the project and set a binding schedule for its implementation; and (vi) the time limit set by the Commission must be respected by the Member State.

91.      In the present case, the suspension of the insolvency procedure by the ALC concerned only the public auctions of United Textiles’ assets. It did not affect the registration of the liability in the schedule of liabilities, nor the cessation of the company’s activities. (55) It did not, therefore, of itself prolong the anticompetitive advantage enjoyed by United Textiles.

92.      However, Greece gave information to the Commission about the ALC only after its adoption and at the Commission’s request. I reject Greece’s argument that it could not inform the Commission immediately about the project since it was still under evaluation. Furthermore, the case file contains no suggestion that Greece involved the Commission in the procedure, as it should have done under the duty of sincere cooperation.

93.      I therefore consider that the suspension of the public auctions by the ALC in order to examine a plan to re-launch United Textiles’ activities was contrary to Greece’s obligations under the recovery decision and the duty of cooperation which underlies, in particular, Article 4(3) TEU.

 Costs

94.      Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Commission has applied for costs and Greece has been unsuccessful, the latter must be ordered to pay the costs.

 Conclusion

95.      In the light of the above considerations, I am of the opinion that the Court should:

(1)      declare that by failing to take, within the prescribed period, all the measures necessary to recovery from the recipient the State aid declared illegal and incompatible with the internal market by Article 1(1) of Commission Decision 2012/541/EU of 22 February 2012 on the State aid SA.26534 (C 27/2010 ex NN 6/2009) implemented by Greece in favour of United Textiles S.A., and by failing to inform the European Commission sufficiently of the measures taken, in accordance with Article 4 of Decision 2012/541, Greece has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision;

(2)      order Greece to pay the costs.

1 -      Original language: English.

2 -      Commission Decision 2012/541/EU of 22 February 2012 on the State aid SA.26534 (C 27/10 ex NN 6/09) implemented by Greece in favour of United Textiles S.A. (OJ 2012 L 279, p. 30) (‘the recovery decision’).

3 -      Regulation of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). That regulation has since been repealed and replaced by 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 (OJ 2015 L 248, p. 9). It was the former regulation that was in force on the date on which the recovery decision was adopted and on the relevant date for assessing the infringement. The latter regulation entered into force on 14 October 2015. In any event, the content of Article 16 of the latter regulation is, apart from the numbering of provisions, identical to that of Article 14 of Regulation No 659/1999.

4 -      Recitals 11 to 15 of the recovery decision.

5 -      Recitals 18 to 21 of the recovery decision.

6 -      Article 1(1) of the recovery decision.

7 -      Recitals 98 and 99 of the recovery decision.

8 -      Article 17 of the ACL. The legal basis for the adoption of that act was Article 44(1) of the Greek constitution, which provides that ‘in extraordinary circumstances of an urgent and unforeseeable need, the President of the Republic may, upon the proposal of the Cabinet, adopt acts of legislative content. …’.

9 -      Judgment of 3 July 2001, Commission v Belgium, C-378/98, EU:C:2001:370, paragraph 26.

10 -      See judgment of 26 June 2003, Commission v Spain, C-404/00, EU:C:2003:373, paragraph 25 and the case-law cited. I cannot therefore accept the Commission’s submission at the hearing that its only option where a Member State has failed to comply with a decision issued under Article 108(2) TFEU is to refer the matter to the Court under that provision.

11 -      Judgment of 3 July 2001, Commission v Belgium, C-378/98, EU:C:2001:370, paragraph 24 and the case-law cited.

12 -      Opinion of Advocate General Wahl in Commission v Germany, C-527/12, EU:C:2014:90, point 26.

13 -      Judgment of 2 February 1988, Commission v Netherlands, 213/85, EU:C:1988:39, paragraph 8. It is the recovery decision that delimits the scope of a procedure under Article 108(2) TFEU (implementation in full and in time). Other considerations, such as the subsequent behaviour of a Member State, should be brought under Article 258 TFEU (after issuing a reasoned opinion) or Article 260 TFEU (where the Court has already found that a Member State has failed to fulfil its obligations) following the procedure defined therein.

14 -      Judgment of 26 June 2003, Commission v Spain, C-404/00, EU:C:2003:373, paragraph 26 and the case-law cited.

15 -      See, to that effect, judgment of 12 February 2015, Commission v France, C-37/14, not published, EU:C:2015:90, paragraph 71.

16 -      Judgment of 12 December 2013, Commission v Italy, C-411/12, not published, EU:C:2013:832, paragraph 30 and the case-law cited. The decisions in question concerned the obligation as to recovery. Similar principles will, in my view, govern the duty to provide information to the Commission.

17 -      See, to that effect, judgment of 3 July 2001, Commission v Belgium, C-378/98, EU:C:2001:370, paragraph 28.

18 -      For instance, in the judgment of 9 July 2015, Commission v France, C-63/14, EU:C:2015:458, the Court noted that the decision was notified on 3 May 2013 (paragraph 14) and that the relevant date was 3 September 2013 (paragraph 46). See also judgment of 12 February 2015, Commission v France, C-37/14, not published, EU:C:2015:90, where the decision was notified on 29 January 2009 (paragraph 15) and the date for assessing the failure to comply with the decision was set at 29 May 2009 (paragraph 58).

19 -      The three cases cited by the Commission in support of this proposition are the judgments of 9 July 2015, Commission v France, C-63/14, EU:C:2015:458; of 12 February 2015, Commission v France, C-37/14, not published, EU:C:2015:90; and of 13 October 2011, Commission v Italy, C-454/09, not published, EU:C:2011:650.

20 -      For instance, in its judgment of 12 February 2015, Commission v France, C-37/14, not published, EU:C:2015:90, the Court noted in relation to the obligation to keep the Commission informed of the recovery of the unlawful aid that the Member State had not communicated all the required information either in the initial period of two months fixed in the decision or subsequently prior to the hearing before the Court (paragraph 88).

21 -      Judgment of 3 July 2001, C-378/98, EU:C:2001:370, paragraph 28; see point 36 above.

22 -      See point 80 et seq. below, especially point 83.

23 -      See judgment of 9 July 2015, Commission v France, C-63/14, EU:C:2015:458, paragraph 44.

24 -      See, to that effect, judgment of 14 April 2011, Commission v Poland, C-331/09, EU:C:2011:250, paragraph 56, and my Opinion in Commission v France, C-214/07, EU:C:2008:343, point 39.

25 -      I agree in that regard with Advocate General Wahl in his Opinion in Commission v Germany, C-527/12, EU:C:2014:90, points 31 to 38.

26 -      Recital 13 and Article 14(3) of Regulation No 659/1999.

27 -      Judgment of 11 September 2014, Commission v Germany, C-527/12, EU:C:2014:2193, paragraph 40 and the case-law cited.

28 -      Judgment of 9 July 2015, Commission v France, C-63/14, EU:C:2015:458, paragraph 45.

29 -      Judgment of 26 June 2003, Commission v Spain, C-404/00, EU:C:2003:373, paragraph 45 and the case-law cited.

30 -      Judgment of 29 January 1998, Commission v Italy, C-280/95, EU:C:1998:28, paragraphs 14 to 16.

31 -      Judgment of 21 March 1991, Italy v Commission, C-303/88, EU:C:1991:136, paragraph 60.

32 -      Judgment of 17 October 2013, Commission v Greece, C-263/12, not published, EU:C:2013:673, paragraph 36.

33 -      Judgment of 29 January 1998, Commission v Italy, C-280/95, EU:C:1998:28, paragraphs 18 to 26.

34 -      Judgment of 5 May 2011, Commission v Italy, C-305/09, EU:C:2011:274, paragraph 33. On the concept of ‘absolute impossibility’ see also Karpenschif, M., Droit européen des aides d’État, Bruylant, Brussels, 2015, pp. 383-387.

35 -      See, to that effect, judgment of 2 July 2002, Commission v Spain, C-499/99, EU:C:2002:408, paragraphs 37 and 38 and the case-law cited.

36 -      Judgment of 2 July 2002, Commission v Spain, C-499/99, EU:C:2002:408, paragraph 37.

37 -      See my Opinion in Commission v France, C-214/07, EU:C:2008:343, point 44.

38 -      Judgments of 14 February 2008, Commission v Greece, C-419/06, not published, EU:C:2008:89, paragraph 40; and of 12 February 2015, Commission v France, C-37/14, not published, EU:C:2015:90, paragraph 67 and the case-law cited.

39 -      Judgment of 26 June 2003, Commission v Spain, C-404/00, EU:C:2003:373, paragraph 46.

40 -      Judgment of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraph 71 and the case-law cited.

41 -      Judgment of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraph 72 and the case-law cited.

42 -      See judgment of 6 December 2007, Commission v Italy, C-280/05, not published, EU:C:2007:753, paragraph 28 and the case-law cited.

43 -      Judgment of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraph 104 and the case-law cited.

44 -      Judgments of 13 October 2011, Commission v Italy, C-454/09, not published, EU:C:2011:650, paragraphs 38 to 42; of 14 April 2011, Commission v Poland, C-331/09, EU:C:2011:250, paragraphs 60 to 65; and of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraphs 73 to 75.

45 -      See point 51 and footnote 38 above.

46 -      See, inter alia, judgment of 9 July 2015, Commission v France, C-63/14, EU:C:2015:458, paragraphs 62 and 63.

47 -      See point 45 above.

48 -      Judgment of 11 September 2014, Commission v Germany, C-527/12, EU:C:2014:2193, paragraphs 40 to 42.

49 -      See, inter alia, judgment of 12 February 2015, Commission v France, C-37/14, not published, EU:C:2015:90, paragraph 67, and my Opinion in Commission v France, C-214/07, EU:C:2008:343, point 48.

50 -      See point 44 above.

51 -      Article 3(3) TEU.

52 -      Judgment of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraph 104 and the case-law cited.

53 -      Commission Notice, ‘Towards an effective implementation of Commission decisions ordering Member States to recover unlawful and incompatible State aid’, OJ 2007 C 272, p. 4, point 67.

54 -      Commission Notice, ‘Towards an effective implementation of Commission decisions ordering Member States to recover unlawful and incompatible State aid’, OJ 2007 C 272, p. 4, point 67.

55 -      The Commission has not presented any evidence to the Court that United Textiles’ activities are continuing. On the contrary, the recovery decision states, in recital 13, that the undertaking’s plants have not been operating since 2008, because of a lack of working capital. For its part, Greece submits that when an undertaking is declared insolvent, the only way for its activities to continue, under Greek law, is by authorisation of the insolvency court or by decision of the creditors’ meeting. Greece has informed the Commission by letters of 12 November 2014 and 15 May 2015 that that was not the case. Against that background I consider that the Commission’s allegations at the hearing about a possible de facto continuation of United Textiles’ activities are not enough to satisfy the burden of proof that lies upon it (see point 34 above).

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