EN

Official Journal of the European Union

C 102/9

(Case C-507/08)

2009/C 102/12

Language of the case: Slovak

Parties

Applicant: Commission of the European Communities (represented by: C. Giolito, J. Javorský, K. Walkerová, acting as Agents)

Defendant: Slovak Republic

Form of order sought

—declare that the Slovak Republic, by failing to execute the Commission Decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s. (notified under C(2006) 2082) has failed to fulfil its obligations under the fourth paragraph of Article 249 of the EC Treaty and Article 2 of that decision;

—order Slovak Republic to pay the costs.

Pleas in law and main arguments

In its decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s., the Commission found that the measures which the Slovak Republic implemented for Frucona Košice, a.s. constituted State aid within the meaning of Article 87(1) EC and that that aid was incompatible with the common market. It also directed the Slovak Republic to take all necessary measures to recover from the beneficiary the unlawfully granted aid.

To date, the aid awarded to Frucona has not been recovered.

State aid was granted to Frucona in the form of a waiver of a tax debt confirmed by the court in the context of an arrangement procedure. The Slovak Republic applied to recover the unlawfully granted aid in legal proceedings. The first instance court dismissed the action inter alia because Frucona’s obligation to pay its debt to the tax authorities arose ex lege. The appeal court upheld the judgment of the first instance court inter alia because it was not possible to review the order concerning the arrangement, because, as res judicata, it must be respected by all bodies, including the appeal court and, also, because the Commission in the decision failed to respect the provisions of national law governing conflicts between bankruptcy and enforcement proceedings.

The judgments of both courts prevent the immediate and effective execution of the Commission decision.

It is not sufficient that the Slovak Republic made use of all means at its disposal. The application of those means must result in the immediate and effective enforcement of the decision, failing which the Slovak Republic must be considered as having failed to fulfil its obligations. A Member State fails to fulfil its obligation to recover if the steps taken by that Member State have no impact on the actual recovery of those amounts.

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(1) OJ L 112, 30.4.2007, p. 14.