CJEU, 4th chamber, September 13, 2017, No C-591/14

THE COURT (Fourth Chamber)

Judgment

1 By its application, the European Commission requests the Court to declare that, by failing to take, within the prescribed period, all the necessary measures to recover from the beneficiaries the State aid declared unlawful and incompatible with the internal market by Article 1(3) and (4) of Commission Decision 2011/678/EU of 27 July 2011 concerning the State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals implemented by Belgium (State aid C 44/08 (ex NN 45/04)) (OJ 2011 L 274, p. 36; 'the decision at issue'), and by failing to inform the Commission, within the period laid down, of the measures taken to comply with that decision, the Kingdom of Belgium has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 2 to 4 of that decision.

Legal context

Regulation (EC) No 659/1999

2 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1) provides in Article 14, headed 'Recovery of aid':

'1. Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary (hereinafter referred to as a "recovery decision"). The Commission shall not require recovery of the aid if this would be contrary to a general principle of [EU] law.

2. The aid to be recovered pursuant to a recovery decision shall include interest at an appropriate rate fixed by the Commission. Interest shall be payable from the date on which the unlawful aid was at the disposal of the beneficiary until the date of its recovery.

3. Without prejudice to any order of the Court of Justice of the European [Union] pursuant to Article [278 TFEU], recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission's decision. To this effect and in the event of a procedure before national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to [EU] law.'

The TSE Guidelines

3 In 2002 the Commission of the European Communities adopted Community guidelines for State aid concerning TSE tests, fallen stock and slaughterhouse waste (OJ 2002 C 324, p. 2; 'the TSE Guidelines'). Points 23 to 25 of the TSE Guidelines state:

'23. In order to promote the taking of measures for the protection of animal and human health, the Commission has decided that it will continue to authorise State aid of up to 100% towards the costs of TSE tests, following the principles of point 11.4 of the agriculture guidelines.

24. However, from 1 January 2003, as far as compulsory BSE testing of bovine animals slaughtered for human consumption is concerned, total direct and indirect public support, including Community payments, may not be more than EUR 40 per test. The obligation for testing may be based on Community or national legislation. This amount refers to the total costs of testing, comprising: test kit, taking, transporting, testing, storing and destruction of the sample. This amount may be reduced in future, as test costs fall.

25. State aid towards the costs of TSE tests has to be paid to the operator where the samples for the tests have to be taken. However, in order to facilitate administration of such State aid, payment of the aid may be made to laboratories instead, provided that it can be properly demonstrated that the full amount of State aid paid is passed on to the operator. In any event, State aid directly or indirectly received by an operator where the samples for the tests have to be taken must be reflected in correspondingly lower prices charged by this operator.'

Background to the dispute and the decision at issue

4 During the years 2001 to 2006, the Kingdom of Belgium assumed all or part of the cost of screening tests for transmissible spongiform encephalopathies in bovine animals ('the BSE tests').

5 In the period from 1 January to 31 December 2001, the cost of the BSE tests was financed in full by the Public Exchequer.

6 From 1 January 2002 to 30 June 2004, the BSE tests were prefinanced by the Bureau d'intervention et de restitution belge (Belgian Intervention and Refund Bureau (BIRB)), a federal public institution with legal personality.

7 From 1 July to 30 November 2004, the BSE tests were financed by the Agence fédérale pour la sécurité de la chaîne alimentaire (Federal Agency for the Safety of the Food Chain (FASFC), Belgium), a public institution with legal personality.

8 Following complaints received by it, the Commission sent the Kingdom of Belgium a request for information on 27 January 2004 concerning the measures for financing the BSE tests. The Belgian authorities replied to that request on 6 February and 14 May 2004.

9 By letter of 23 January 2004, the Kingdom of Belgium notified the Commission of an aid measure intended to cover the costs of screening for BSE in animals. By that measure, it was intended to prefinance the costs of the BSE tests, the amount of which would have had to be refunded subsequently by means of parafiscal charges. According to the explanation provided by the Kingdom of Belgium, the financing mechanism notified was merely a recasting of a draft royal decree which had been approved by the Commission in 2001 but was not implemented. As the notified measure had already been put into effect, it was entered in the register of non-notified aid under number NN 45/04.

10 On 16 September 2004 the Belgian authorities gave notice of a new draft royal decree, which became the arrêté royal du 15 octobre 2004 relatif au financement du dépistage des encéphalopathies spongiformes transmissibles chez les animaux (royal decree of 15 October 2004 on the financing of screening for transmissible spongiform encephalopathies in animals) (Moniteur belge of 8 November 2004, p. 75290). That decree laid down a system requiring payment of a fee of EUR 10.70 per bovine animal presented for slaughter.

11 By letter of 26 November 2008, the Commission informed the Kingdom of Belgium that it had decided to initiate the procedure provided for in Article 108(2) TFEU.

12 In recital 121 of the decision at issue, the Commission noted that the maximum amount of aid authorised in the context of the financing of the BSE tests, set in the TSE Guidelines at EUR 40 per test, had been exceeded by the Kingdom of Belgium between 1 January 2003 and 30 June 2004. The Commission stated that the aid which exceeded that maximum authorised amount was assessed as coming to EUR 6 619 810.74.

13 In recital 92 of the decision at issue, the Commission found that '... the measures financed through State resources, including the contributions, give a selective advantage to farmers, slaughterhouses and other entities that process, handle, sell or trade in bovine animal products that are subject to compulsory BSE testing under the applicable legislation, by reducing the costs they must pay. These advantages are not conferred by direct payments, but by the public authorities covering the costs of the BSE tests by directly paying the laboratories which perform the tests on request from the slaughterhouses and invoice the costs to the FASFC.'

14 In recitals 99 and 100 of the decision at issue, the Commission stated, first, that the financing of the BSE tests through contributions constituted an advantage, financed by State resources, for farmers, slaughterhouses and other entities which processed, handled, sold or marketed products from bovine animals subject to a mandatory BSE test and, secondly, that that advantage fell within the scope of Article 107(1) TFEU. After mentioning that the Kingdom of Belgium had not notified it of that aid, the Commission stated that that aid was unlawful.

15 In recitals 126 to 128 of the decision at issue, the Commission examined, in respect of the aid paid between 1 January 2003 and 30 June 2004, the system of recovering aid by means of the contributions levied to finance the FASFC, as proposed by the Kingdom of Belgium, according to which the reason for recourse to that global approach was that, in practice, it was difficult to enforce recovery on an individual basis.

16 The Commission stated in recital 129 of the decision at issue that the system for recovery of the aid thereby implemented by the Kingdom of Belgium did not meet the requirements for the recovery of aid that was unlawful and incompatible with the internal market since, contrary to settled case-law of the Court, it did not oblige the beneficiary of the aid to return himself the advantage which he had enjoyed in the market over his competitors.

17 In the light of those matters, the Commission, by the decision at issue which was notified to the Kingdom of Belgium on 28 July 2011, decided as follows:

'Article 1

1. The measures financed through fees do not constitute aid.

2. For the period from 1 January 2001 to 31 December 2002 and for the period from 1 July 2004 to 31 December 2005, financing of BSE tests from State resources constitutes aid compatible with the internal market for farmers, slaughterhouses and other entities that process, handle, sell or trade in bovine animal products that are subject to compulsory BSE testing.

3. For the period from 1 January 2003 to 30 June 2004, financing of BSE tests from State resources constitutes aid compatible with the internal market for farmers, slaughterhouses and other entities that process, handle, sell or trade in bovine animal products that are subject to compulsory BSE testing for amounts of up to EUR 40 per test. Amounts in excess of EUR 40 per test are incompatible with the internal market and must be recovered, with the exception of aid granted to specific projects which, at the time the aid was granted, met all the conditions set in the applicable de minimis Regulation.

4. Belgium unlawfully implemented aid to finance BSE tests in breach of Article 108(3) of the TFEU during the period from 1 January 2001 to 30 June 2004.

Article 2

1. Belgium shall take all necessary measures to recover the unlawful and incompatible aid referred to in Article 1(3) and (4) from its beneficiaries.

2. The aid to be recovered shall include interest calculated from the date on which it was placed at the disposal of the beneficiaries until the date of its recovery.

3. The interest shall be calculated on a compound basis in accordance with Chapter V of [Commission] Regulation (EC) No 794/2004 [of 21 April 2004 implementing Regulation No 659/1999 (OJ 2004 L 140, p. 1)].

4. Recovery shall be effected without delay in accordance with the procedures provided for in national law, provided that they allow the immediate and effective execution of this Decision.

Article 3

Recovery of the aid referred to in Article 1(3) and (4) shall be immediate and effective.

Belgium shall ensure that this Decision is implemented within four months of the date of its notification.

Article 4

1. Within two months of notification of this Decision, Belgium shall submit the following information to the Commission:

(a) a list of beneficiaries who received the aid referred to in Article 1(3) and (4) and the total amount of aid received by each one;

(b) the total amount (principal and recovery interest) to be recovered from the beneficiaries;

(c) a detailed description of the measures already taken or planned to comply with this Decision;

(d) documents demonstrating that orders to return the aid have been sent to the beneficiaries.

2. Belgium shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Article 1(3) and (4) has been completed.

3. After the two-month period referred to in paragraph 1, Belgium shall submit, at the Commission's request, a report on the measures already taken and those planned to comply with this Decision. That report shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries.

Article 5

This Decision is addressed to the Kingdom of Belgium.'

Pre-litigation procedure

18 On 27 September 2011 the Kingdom of Belgium informed the Commission that it disagreed with the decision at issue.

19 To that end, it stated first of all that it maintained that State financing of the cost of the BSE tests did not constitute State aid, in that 'there is no rule of EU law which obliges the Member States to recover, in whole or in part, the costs of the BSE tests from the economic operators, in particular those who are active in the agricultural sector'. Next, the Kingdom of Belgium stressed the importance of the investigation which the competition authorities were in the process of conducting regarding suspected anti-competitive practices by the laboratories when the BSE tests were carried out.

20 As regards implementation of the decision at issue, it contended that, in the light of the broad category of persons designated by Article 1 of the decision at issue as being the beneficiaries of the aid that was unlawful and incompatible with the internal market, namely farmers, slaughterhouses and other entities that process, handle, sell or trade in bovine animal products that are subject to compulsory BSE testing, it was impossible 'to find an objective link between the animal tested for [BSE] to begin with and the beneficiaries at all stages until sale of the end product'.

21 Finally, the Kingdom of Belgium contended that, in any event, it was sufficient to apportion the amount of that aid equally between the six sectors concerned (cattle farmers, sellers of live animals, slaughterhouses, production and processing of products, wholesale, retail), and to divide that amount by the number of economic operators acting in those sectors, in order to find that there was no need to recover the aid, pursuant to the de minimis rule.

22 On 18 July 2012 the Commission stated to the Kingdom of Belgium that the beneficiary of the aid 'is the operator under an obligation to test for BSE who is charged a fee by the slaughterhouse for the cost of the BSE tests' and that it was incumbent on the Kingdom of Belgium 'to verify during the period concerned whether the individual beneficiaries of the BSE testing service carried out in respect of their bovine animals benefitted from incompatible aid (that is to say, aid above EUR 40) in excess of the de minimis amount'. In that regard, the Commission suggested a method of calculation consisting - assuming that other aid was not granted - in dividing the de minimis amount by the amount in excess of the threshold of EUR 40 per test carried out, in order to obtain finally the number of BSE tests per operator above which the aid would exceed the authorised thresholds.

23 After a number of exchanges of correspondence, relating in particular to the method of calculation for determining the amounts of aid to be recovered, the Commission, being of the view that the Kingdom of Belgium had not taken the measures necessary to comply with the decision at issue, brought the present action by application dated 19 December 2014.

24 After that action was brought, the General Court of the European Union, by judgment of 25 March 2015, Belgium v Commission (T 538/11, EU:T:2015:188), dismissed the action for annulment previously brought by the Kingdom of Belgium against the decision at issue. By judgment of 30 June 2016, Belgium v Commission (C 270/15 P, EU:C:2016:489), the Court of Justice dismissed the Kingdom of Belgium's appeal against that judgment of the General Court.

The action

Arguments of the parties

25 The Commission states that no recovery of the aid at issue took place in the period of four months following the date of notification of the decision at issue, that is to say, by 28 November 2011 at the latest, and the Kingdom of Belgium has not proved that it was absolutely impossible for it to implement that decision.

26 In that regard, the Commission submits that, contrary to what is pleaded by the Kingdom of Belgium, the decision at issue makes it possible to identify the beneficiaries of the aid that was unlawful and incompatible with the internal market. That decision is not directed globally at farmers, slaughterhouses and other entities that process, handle, sell or trade in bovine animal products, but specifies that, of those persons, the beneficiaries of the aid are the persons who are obliged to have BSE testing carried out and whom the aid has enabled to reduce their operating costs.

27 Thus, the actual beneficiaries of the aid that was unlawful and incompatible with the internal market are, in most cases and in the absence of any particular circumstance, the primary producers, but, in other circumstances and as the case may be, could be the slaughterhouse, the entity which processed or handled the animal, or the entity which sold or traded in the bovine animal products.

28 The Commission adds that, throughout the exchanges of correspondence with the Kingdom of Belgium, it constantly suggested practical and feasible methods of implementing the decision at issue and that, contrary to the Kingdom of Belgium's assertions, its position never varied as regards the persons who, for the purposes of that decision, had to be regarded as being beneficiaries of the aid declared unlawful and incompatible with the internal market.

29 It states that the Kingdom of Belgium cannot rely on the de minimis regulations since it has not identified the individual beneficiaries of the aid and is consequently unable, first, to prove that the aggregate amount of aid did not in fact exceed the ceiling authorised by those regulations and, secondly, to establish that all the other conditions laid down by them has been complied with.

30 The Commission adds that the Kingdom of Belgium is wrong in pleading that it was absolutely impossible to implement the decision at issue and in contending that throughout the procedure it displayed the utmost good faith, even though it constantly opposed implementation of the decision at issue by a line of argument that was contrary thereto.

31 In response, the Kingdom of Belgium submits, first, that the financing of the BSE tests cannot be classified as State aid since the obligation to carry out those tests has the protection of public health as its basis and they consequently cannot be regarded as a burden normally borne by the budget of an undertaking.

32 It asserts, secondly, that there is reasonable certainty that the de minimis thresholds were not exceeded, so that it did not fail in the slightest to fulfil the obligations flowing from the decision at issue. For this purpose, it contends that, since BSE is a disease which affected the entire food chain, from the production stage to the stage of sale of the end product, it is impossible to identify an objective link between the animal tested and the various beneficiaries at all the stages of the process of production and sale of the end product. That is why it has always maintained, in accordance with the decision at issue, in particular recital 92, that the cost of the BSE tests has to be passed on to the six economic sectors concerned by bovine meat, in particular as, if the aid to be recovered were allocated to those sectors in equal shares, the average amount of the advantage per beneficiary and per sector would be clearly below the de minimis thresholds, and it would therefore be unreasonable to require a State to perform extremely burdensome tasks that would quite obviously be pointless.

33 The Kingdom of Belgium adds that, in any event, it would be possible to establish whether the de minimis thresholds are exceeded in relation to each of the beneficiaries of the aid only if the decision at issue actually enabled those beneficiaries to be identified, which is not the case here.

34 To that end, it submits that there are inconsistencies in the decision at issue, which do not enable it to be established whether the aid that was unlawful and incompatible with the internal market must be recovered solely from the animal's owner or from all the economic operators acting in the sectors specified in that decision. Those inconsistencies mean that the decision either should be regarded as non-existent or is impossible to implement.

35 In this connection, the Kingdom of Belgium contends that it cannot be alleged to have failed to cooperate in good faith with the Commission, since solely adoption of the global method which it recommended for implementing the decision at issue was capable of enabling its implementation; this was not allowed by the Commission, which kept varying its explanations regarding determination of the aid that was unlawful and incompatible with the internal market.

Findings of the Court

36 It should be noted first of all, as the Advocate General did in point 55 of his Opinion, that the Kingdom of Belgium does not deny that the financing classified as aid under Article 1(3) and (4) of the decision at issue has not been the subject of any recovery measure or that the information referred to in Article 4 of that decision was not communicated to the Commission within the prescribed period.

37 Consequently, it is necessary to examine the grounds of defence which the Kingdom of Belgium puts forward to justify the failure to implement the decision at issue.

38 In that regard, it should be noted that, with the exception of cases in which a recovery decision has been annulled pursuant to Article 263 TFEU, the only defences available to a Member State in opposing an infringement action by the Commission under Article 108(2) TFEU are to plead that it was absolutely impossible for it to implement the decision of which it was the addressee (see judgment of 9 July 2015, Commission v France, C 63/14, EU:C:2015:458, paragraph 48 and the case-law cited) or that the recovery decision is non-existent, assuming that the decision contains particularly serious and manifest defects (see to that effect, inter alia, judgments of 10 October 2013, Commission v Italy, C 353/12, not published, EU:C:2013:651, paragraph 43, and of 22 March 2001, Commission v France, C 261/99, EU:C:2001:179, paragraph 19).

39 As regards the argument to the effect that the financing of the BSE tests was wrongly classified as State aid, it is sufficient to state that this argument is in fact tantamount to contesting the very existence of State aid and, consequently, the validity of the decision at issue, without, however, going so far as to contend that the decision at issue is non-existent. Thus, this argument can be relied upon only in the procedural context of an action for annulment, as provided for in Article 263 TFEU (see, to that effect, judgment of 12 February 2015, Commission v France, C 37/14, not published, EU:C:2015:90, paragraph 77 and the case-law cited).

40 In any event, the same argument has already been examined and rejected in paragraphs 79 to 81 of the judgment of 25 March 2015, Belgium v Commission (T 538/11, EU:T:2015:188), by which the General Court dismissed the Kingdom of Belgium's action for annulment of the decision at issue, a judgment which was upheld by the Court of Justice in its judgment of 30 June 2016, Belgium v Commission (C 270/15 P, EU:C:2016:489).

41 It follows from the foregoing considerations that the argument to the effect that the financing of the BSE tests was wrongly classified as State aid is inadmissible.

42 As regards the Kingdom of Belgium's argument that the decision at issue is non-existent, put forward in the event that the aid at issue should be recovered exclusively from farmers, it is to be noted that, both in recitals 90, 92 and 99 and in Article 1(3), that decision designates the beneficiaries of the aid as being those bearing the burden of the carrying out of a compulsory BSE test.

43 It follows that, although the decision at issue did not identify the beneficiaries more precisely on the basis of a specific sector or by objective characteristics other than those referred to in the previous paragraph, it nevertheless made it possible to determine the beneficiaries of the aid that was unlawful and incompatible with the internal market, without limiting those beneficiaries to farmers alone. Consequently, the decision at issue cannot be regarded as non-existent.

44 As for the argument concerning difficulties connected with identifying the actual beneficiaries of the aid at issue, put forward in the event that the obligation to recover the aid does not relate only to farmers, it should be noted that apprehension of even insuperable internal difficulties, relating inter alia to verification of the situation of each undertaking concerned for the purposes of recovering the unlawful aid or to the wide reach of the aid scheme across the fabric of national production industry, cannot justify a failure by a Member State to fulfil its obligations under EU law (see, to that effect, judgment of 1 April 2004, Commission v Italy, C 99/02, EU:C:2004:207, paragraphs 22 and 23 and the case-law cited).

45 In the present instance, the Kingdom of Belgium has not demonstrated that it was impossible for it to identify in practice the actual beneficiaries of the aid at issue. Indeed, it could have contacted, for example, the laboratories or the operators on whose sites the samples for the tests were taken, entities referred to in point 25 of the EST Guidelines, in order to determine the other operators to whom the aid was passed on.

46 As regards the argument to the effect that the de minimis thresholds were not exceeded, it should be recalled that, in order to determine the beneficiary of State aid, it is necessary to identify the undertakings which actually enjoyed the benefit of it (judgments of 3 July 2003, Belgium v Commission, C 457/00, EU:C:2003:387, paragraph 55, and of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C 164/15 P and C 165/15 P, EU:C:2016:990, paragraph 90 and the case-law cited). That case-law precludes calculating the amount of the aid to be recovered by dividing the overall amount of the aid in equal shares between the economic sectors designated by the decision at issue, as the Kingdom of Belgium proposes in order to demonstrate that the de minimis thresholds were not exceeded.

47 Moreover, according to the Court's case-law, whilst it is incumbent upon the Commission to prove the allegation that the obligation of recovery has not been fulfilled, by providing the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled, and, in so doing, the Commission may not rely on any presumption, it is incumbent, on the other hand, upon the Member State concerned, where failure to recover some or all of the aid at issue has been established, to substantiate the reasons why recovery is not required so far as concerns certain beneficiaries (judgment of 12 February 2015, Commission v France, C 37/14, not published, EU:C:2015:90, paragraph 71). Apart from the method of calculation, ruled out by the case-law cited in the previous paragraph, the Belgian Government does not provide any specific and concrete data justifying the conclusion that the de minimis thresholds are complied with in respect of the beneficiaries concerned.

48 In the light of all the foregoing considerations, it must be found that, by failing to take all the necessary measures to recover from the beneficiaries the State aid declared unlawful and incompatible with the internal market by Article 1(3) and (4) of the decision at issue, and by failing to inform the Commission of the measures taken to comply with that decision, the Kingdom of Belgium has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 2 to 4 of that decision.

Costs

49 Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Fourth Chamber) hereby:

1. Declares that, by failing to take all the necessary measures to recover from the beneficiaries the State aid declared unlawful and incompatible with the internal market by Article 1(3) and (4) of Commission Decision 2011/678/EU of 27 July 2011 concerning the State aid for financing screening of transmissible spongiform encephalopathies (TSE) in bovine animals implemented by Belgium (State aid C 44/08 (ex NN 45/04)), and by failing to inform the European Commission of the measures taken to comply with that decision, the Kingdom of Belgium has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 2 to 4 of that decision;

2. Orders the Kingdom of Belgium to pay the costs.