The European Commission updates and clarifies its policy on recovery of illegal State aid

Vera Sopeña Alfonso Lamadrid
Garrigues

On October 25, 2007, the European Commission published a Notice on the implementation of recovery decisions The Recovery Notice was issued within the framework of the State Aid Action Plan, whose priorities include a more effective enforcement of recovery decisions founded on strengthened cooperation between the Commission and the Member States.

As for the parties’ obligations, on the one hand, the Commission commits itself to issuing clear and complete decisions as regards both the identification of the beneficiaries and the quantification of the amount of aid. On the other hand, the member states are required to inform the Commission of any implementing measure taken or envisaged to execute the decision within the first two months following its adoption; and to achieve compliance with the recovery decision during the two subsequent months (therefore, compliance period has been extended to four months from the adoption of the decision).8 Obtaining a further extension of this time limit is only possible if Member States have previously informed the Commission of any difficulties encountered.

As far as Member States are concerned, the Commission’s decision ordering recovery is binding upon all state organs, including courts. Member States cannot avoid their obligation to comply except in situations of absolute impossibility. Pursuant to Article 14(3) of Regulation No. 659/1999, Member States remain free to choose the applicable national procedure, provided that it allows implementation to take place in an effective and immediate manner.
Moreover, the Recovery Notice provides extensive guidance on how to address difficulties relating to the identification of the beneficiaries and the quantification of the aid to be recovered, in particular
regarding attempts to circumvent the recovery order, aid schemes and insolvent undertakings.