Odbor kompatibility s právem ES Úřad vlády ČR	I S A P Informační Systém pro Aproximaci Práva
	Databáze č. 17 : Databáze judikatury

ă Odbor kompatibility s právem ES, Úřad vlády ČR - určeno pouze pro potřebu ministerstev a ostatních ústředních orgánů


	Číslo (Kód CELEX): Number (CELEX Code):		61987J0094

	Název: Title:		ECJ Judgment of 2 February 1989 Case 94/87 Commission of the European Communities v Federal Republic of Germany [1989] ECR 175

	Publikace: Publication:

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:		31686D0060

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Joined Cases 205 to 215/82 Deutsche Milchkontor v Germany [1983] ECR 2633


	Plný text: Fulltext:		Ne

Fakta:
Alcan is a company situated in Germany producing primary aluminium. As the company wanted to close down its metallurgical plant in Ludwigshafen, the Land of Rheinland-Pfalz decided to provide to Alcan a state aid of DM 8 million. The aid was granted by the national authorities between 1983 and 1984 without prior notification to the Commission. In Decision 86/60 of 14 December 1985 OJ 1986 L72, p. 30.
the Commission objected to the aid and asked for its repayment Article 1 of the decision provided:”The aid of DM 8 million in the form of the grants that the Land of Rheinland-Pfalz provided to a primary aluminium undertaking in Ludwigshafen in 1983 and 1984 is illegal, having been granted in violation of the provisions of Article 93(3) of the EEC Treaty. Moreover, it is incompatible with the common market within the meaning of Article 92 of the Treaty. The said aid shall therefore be recovered from the recipient.”. Although neither the German government nor Alcan had sought to have the decision annulled within the period prescribed by Article 230(3) (ex Art. 173(3)) of the Treaty, no measure was adopted with a view to recovering the aid. The Commission, therefore, brought an action under the second subparagraph of Article 88(2) (ex Art. 93(2)) of the Treaty for a declaration that the Federal Republic of Germany had failed to fulfil its obligations under the EEC Treaty.
The German Government challenged its obligation to recover the aid in question. It contended that the aid could not be recovered without a breach of the principle of the protection of legitimate expectations, which is embodied in the applicable law of Rheinland-Pfalz. The decision should, therefore, be interpreted merely as a reference to the principle that unlawful aid must be recovered, subject to the principles of domestic law, as otherwise it would be legally impossible to discharge that obligation.

Názor soudu a komentář:
Faced with the unconditional and unambiguous terms of the decision, the Court had no choice but to reject the interpretation of the German Government and to state that the obligation to recover the aid imposed by the decision was definitive. After that, it turned to the essential question whether the obligation to recover an aid, which had been granted by the national authorities to an undertaking in breach of the Treaty, may be frustrated by the application of a rule of domestic law, in particular by the principle of the protection of legitimate expectations. With reference to its case-law (in particular Case 52/84 Commission v Belgium [1986] ECR 89), the Court found that the only exception to the primary obligation to obtain repayment of the illegal aid is where it is ”absolutely impossible” for the Member State to implement the decision properly. Moreover, the Court remarked that, even where the exception to the primary obligation does come into play, there will be a secondary obligation derived from Article 10 (ex Art. 5) of the Treaty, requiring the State to submit these problems for consideration by the Commission, together with proposals for suitable amendments to the decision in question.
In the present case, the German Government had merely informed the Commission of the difficulties involved in implementing the decision, without taking any step to recover the aid and without proposing any arrangements to overcome those difficulties. Hence, the Court declared that the German Government had no basis for claiming that it was absolutely impossible to implement the Commission’s decision. In addition, the Court pointed out that the relevant provisions of national law must be applied in such a way that the recovery required by Community law is not rendered practically impossible and the interests of the Community are taken fully into consideration (see ¦ Deutsche Milchkontor).
It follows from the judgment, that the existence of ”unforeseen and unforeseeable” difficulties imposes on the Member State and the Commission a duty of genuine cooperation. Such difficulties can oblige the Commission to accord considerate treatment in the proceedings brought to ensure the application of Community law. However, they cannot result in the substantive principles of the Community legal order themselves being called into question.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):