27.3.2010

Official Journal of the European Union

C 80/11

(Case C-549/09)

2010/C 80/18

Language of the case: French

Parties

Applicant: European Commission (represented by: E. Gippini Fournier and K. Walkerová, Agents)

Defendant: French Republic

Form of order sought

—declare that, by failing to implement the Commission Decision of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen (1) by recovering from the beneficiaries the aid which was declared unlawful and incompatible with the common market in Articles 2 and 3 of that decision, and by failing to inform the Commission of the measures taken to comply with that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 4 and 5 of that decision;

—order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission complains that the defendant has still not taken the measures necessary to recover, ‘without delay’, from the beneficiaries the aid declared unlawful and incompatible with the common market or, in any event, has not communicated those measures to the Commission.

France was to inform the Commission, within a period of two months from notification of the decision, of the measures taken to comply with that decision. However, more than five years have elapsed since the French authorities received that decision and no reimbursement of the aid granted has been made.

The applicant recalls furthermore that, according to settled case-law, the only defence available to a Member State against infringement proceedings brought by the Commission on the basis of Article 108(2) TFEU is to plead that it was absolutely impossible to implement the decision. However, the French authorities have never pleaded exceptional and unforeseeable difficulties rendering implementation of the decision impossible. They have merely indicated that they intended to take the relevant recovery measures jointly with another matter concerning recovery of other incompatible aid.

(1) Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen (OJ 2005 L 74, p. 49).