COMPETITION • EUROPEAN LAW • STATE AID
Proceedings for failure to comply with a negative decision, infringement of a decision embodying an order, or non-observance of a decision approving aid, on the basis of Article 108(2) TFEU, are accelerated in comparison to the action for failure to fulfill obligations set forth in Article 258 TFEU.
The Commission, which is not required to issue a reasoned opinion since a decision has already been adopted, may refer the matter to the Court of Justice directly. This is a possibility and not an obligation: the Commission enjoys a discretion precluding any right for anyone to require it to adopt a specific position.
As the procedure set forth in Article 108(2) takes place without pre-litigation phase, the failure to fulfill the obligation is assessed on the date provided for in the decision for which implementation is contested or, where appropriate, that subsequently fixed by the Commission. The Member State cannot rely on the existence of a pending action for annulment to justify its failure to implement. The unlawfulness of a decision to recover a State aid cannot either be raised as defense by the Member State concerned within the framework of an action for failure to fulfill obligation on the basis of Article 108(2). The Member State can only raise as a defense the absolute impossibility to properly enforce the decision.
The Member State may be ordered to pay a penalty payment of an amount calculated by multiplying the basic amount by the percentage of aid that has not been recovered, or not shown to have been recovered at the end of the period concerned compared to the total amount not yet recovered on the date on which the penalty payment is ordered.
