C-261/99

OPINION OF MR ALBER — CASE C-261/99

OPINION OF ADVOCATE GENERAL ALBER delivered on 11 January 2001 1

1. In the present application for a declara- (2) Repayment shall be made in accordance tion that a Member State has failed to fulfil with the procedures and provisions of its obligations, the Commission claims that French law. The amounts to be repaid shall France has failed to implement a decision bear interest from the date on which the aid concerning the recovery of aid. was paid to the recipient until the date on which it is effectively recovered. The inter- est shall be calculated on the basis of the reference rate used to calculate the net grant equivalent of regional aid.

2. On 4 November 1998 the Commission adopted the decision on aid granted by France to Nouvelle Filature Lainière de Roubaix. 2

(3) France shall without delay abolish the aid referred to in Article 3 by applying normal market conditions corresponding at 3. The decision states inter alia that: least to the reference rate of 8.28% applic- able at the time the loan was granted.

'Article 4

— declare that, by failing to adopt within 8. The Court has consistently held that the the prescribed time-limit the measures only defence available to a Member State in necessary in order to recover from opposing the obligation to recover aid is to Nouvelle Filature Lainière de Roubaix, plead that recovery was absolutely impos- the recipient thereof, the aid declared sible. There is no reason to suppose that to be illegal and incompatible with the that obtains in the present case. common market by the decision of the Commission of 4 November 1998, which was notified on 17 November 1998, the French Republic has failed to fulfil its obligations under the fourth 9. It is also claimed that France had failed to fulfil its obligation to cooperate with the 3 — Case C-17/99 France v COMMISSI»» [2001] ECR I-2481, Commission in good faith, since the French ECR I-2484, see the Opinion delivered on 11 January 2001. authorities had not replied to the Commis-

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OPINION OF MR ALBER — CASE C-261/99

sion's reminder nor had they drawn atten- no application for interim measures tion in any other way to possible obstacles because it was aware of the consistent to the recovery of the aid or suggested case-law of the Court. alternative measures for implementing the decision. There was also no evidence that France had taken any steps whatever to recover the aid.

13. At the hearing in Case C-17/99 of 23 November 2000, the French Govern- ment representative announced that Nou- velle Filature Lainière de Roubaix had since 10. France states that it is aware of its become bankrupt and had been wound up obligation to recover the aid but has so far by judicial decision. not been in a position to fulfil that obliga- tion.

'34 ... the system of remedies set up by the Treaty distinguishes between the actions under Articles 169 and 170 of the EC Treaty (now Articles 226 and 227 EC), which are directed to obtain- 36 That also applies to an action for ing a declaration that a Member State failure to fulfil obligations based on has failed to fulfil its obligations, and the second subparagraph of Arti- those under Articles 173 of the EC cle 93(2) of the EC Treaty.' Treaty (now, after amendment, Arti- cle 230 EC) and Article 175 of the EC Treaty (now Article 232 EC), which are directed to obtaining judicial review of measures adopted by the Community institutions, or of failure to act on their part. Those remedies 16. In the present case there is no apparent have different objectives and are sub- reason to suppose that the Commission ject to different rules. In the absence of Decision should be deemed non-existent. a provision of the Treaty expressly On the contrary, it follows from the permitting it to do so, a Member State Opinion in Case C-17/99 of 11 January cannot, therefore, properly plead the 2001 that it must be regarded as lawful. unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to i m p l e m e n t t h a t d e c i s i o n (Case 226/87 Commission v Greece [1988] ECR 3611, paragraph 14, and Case C-74/91 Commission v Germany 17. The Court also held in the aforemen- [1992] ECR I-5437, paragraph 10). tioned judgment in Case C-404/97: 6

35 The position could be different only if the measure in question contained particularly serious and manifest '38 ... it is settled case-law that recovery of defects such that it could be deemed unlawful aid is the logical consequence non-existent (Case 226/87 Commis- of the finding that it is unlawful and sion v Greece, cited above, para- that that consequence cannot depend on the form in which the aid was

20. Even the fact that the recipient under- taking has since become bankrupt and been wound up cannot alter the outcome of these proceedings. In the first place, the 18. Finally, the Court pointed out in that French Republic is obliged to continue to judgment that 'a decision is presumed to be recover the aid even in the bankruptcy lawful and, despite the existence of the proceedings. In the second place, under action for annulment, it [remains] binding Article 5 of the Commission decision, the in all respects...'. 7A similar provision is French Republic was obliged at the very contained in Article 14(3) of Council Reg- least to take measures to recover the aid ulation (EC) No 659/1999 of 22 March and inform the Commission within two 1999 laying down detailed rules for the months of receipt of the decision. 10 The application of Article 93 of the EC Treaty. 8 French Republic failed to fulfil that obliga- That provision expressly points out that, tion. pursuant to Article 185 of the EC Treaty 9 — See also the Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-404/97, cited in footnote 4, at point 37. 7 — Case C-404/97, cited in footnote 4, at paragraph 57. 10 — See Case 52/84 Commission v Belgium [1986] ECR 89, at 8 — OJ 1999 L 83, p. 1. paragraph 15.

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COMMISSION V FRANCE

Conclusion

21. It is therefore proposed that the Court should:

(1) declare that, by failing to adopt within the prescribed time-limit the measures necessary in order to recover from Nouvelle Filature Lainière de Roubaix, the recipient thereof, the aid declared to be illegal and incompatible with the common market by the decision of the Commission of 4 November 1998, which was notified on 17 November 1998, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 189 of the EC Treaty (now the fourth paragraph of Article 249 EC) and Articles 4 and 5 of that decision.