CELEX: 62015TJ0402
ERDF
Refusal to confirm a financial contribution to a major project
Article 41(1) of Regulation (EC) No 1083/2006
Evaluation of the contribution of a major project to the achievement of the objectives of the operational programme
Article 41(2) of Regulation (EC) No 1083/2006
Time limit exceeded

)
…
Procedure and forms of order sought by the parties
By application lodged at the Registry of the General Court on 22 July 2015, the Republic of Poland brought the present action. It claims that the Court should:
–
annul the contested decision;
–
order the Commission to pay the costs.
On 4 November 2015, the Commission lodged the defence at the Registry of the General Court. The Commission contends that the Court should:
–
dismiss the action as unfounded;
–
order the Republic of Poland to pay the costs.
On 5 January 2016, the Republic of Poland lodged a reply and on 11 March 2016, the Commission lodged a rejoinder.
None of the parties applied for a hearing.
The General Court (Seventh Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure.
Law
The Republic of Poland raises four pleas in law in support of the action, the first alleging, in essence, on the one hand, infringement of the combined provisions of Article 41(1), Article 56(3) and Article 60(a) of Regulation No 1083/2006 and infringement of the principle of sincere cooperation and, on the other, infringement of Article 41(2) of Regulation No 1083/2006; the second alleging an error of assessment of the extent of innovation diffusion and innovative nature of the project; the third alleging an error of assessment of the type of employment created by the project and the fourth alleging an error of assessment of the project as regards its added value and incentive effect.
It must be noted that the first plea in the action concerns the procedural and substantive methods of project assessment, while the last three pleas relate, successively, to the three grounds on which the Commission took the view that the project failed to contribute to the OPIE [operational programme ‘Innovative Economy’] within the meaning of Article 41(1) of Regulation No 1083/2006, namely the lack of dissemination of innovation, of highly skilled jobs and of added value (see paragraph 15 above).
…
The first plea in law, alleging, in essence, firstly, infringement of the combined provisions of Article 41(1), Article 56(3) and Article 60(a) of Regulation No 1083/2006 and infringement of the principle of sincere cooperation and, secondly, infringement of Article 41(2) of Regulation No 1083/2006
The Republic of Poland argues that the Commission has committed two main infringements. Firstly, in the assessment of the project, the Commission went beyond the selection criteria. Secondly, the Commission breached the time limit laid down in Article 41(2) of Regulation No 1083/2006.
…
The second part of the first plea in law, alleging failure to comply with the time limit laid down in Article 41(2) of Regulation No 1083/2006
…
Article 41(2) of Regulation No 1083/2006 states as follows:
‘The Commission shall adopt a decision as soon as possible but no later than three months after the submission by the Member State … of a major project, provided that it is submitted in accordance with Article 40 [of Regulation No 1083/2006]. That decision shall define the physical object, the amount to which the co-financing rate for the priority axis … applies, and the annual plan of financial contribution from the ERDF or the Cohesion Fund.’
Article 41(3) of Regulation No 1083/2006 states as follows:
‘Where the Commission refuses to make a financial contribution from the Funds to a major project, it shall notify the Member State of its reasons within the period and the related conditions laid down in [Article 41(2) of that regulation].’
Firstly, it is appropriate to determine whether the time limit laid down in Article 41(2) of Regulation No 1083/2006 is indicative or mandatory, in the light of the wording and scheme of that provision (see, by analogy, judgment of 20 January 2005, Merck, Sharp & Dohme,
C‑245/03
,
EU:C:2005:41
, paragraph
).
In that regard, it is appropriate to note that Article 41(2) of Regulation No 1083/2006 does not contain any indications suggesting that the time limit is purely indicative. On the contrary, the use of the French verb ‘adopter’ in the indicative form (‘adopte’) shows that the Commission is required to comply with that time limit, which is corroborated, inter alia, by the English version of that provision, which, by using the term ‘shall adopt’, expressly refers to an obligation. The use of the expression ‘as soon as possible but no later than’ merely confirms that compliance with that time limit is not an option but an obligation on the Commission, which the legislature sought to underline.
It follows therefrom that the time limit set out in Article 41(2) of Regulation No 1083/2006, as is clear from both the wording and scheme of that provision, is a mandatory time limit.
Secondly, it is clear that, in the present case, as the Republic of Poland rightly points out (see paragraph 61 above), in the light of the factual developments recalled in paragraphs 3 to 14 above, the time limit of three months laid down in Article 41(2) of Regulation No 1083/2006, applicable to a refusal decision by virtue of Article 41(3) of that regulation, was exceeded by the Commission.
It must be noted that, following the withdrawal of the first application for confirmation, which brought the procedure assessing that application to an end, with regard to the second application for confirmation, the Commission, first of all, took almost 11 months to send, on 24 June 2014, a letter to the Republic of Poland containing its assessment of that application and, subsequently, in answer to the Republic of Poland’s reply of 28 August 2014, took approximately eight and a half months to give its formal ruling on that application and adopt, on 11 May 2015, the contested decision under Article 41(3) of Regulation No 1083/2006.
Thirdly, in those circumstances, it is necessary to determine the consequences of the three-month time limit laid down in Article 41(2) of Regulation No 1083/2006 being exceeded and, in particular, to assess whether that must automatically entail, for that reason alone, the annulment of the contested decision.
Since Article 41 of Regulation No 1083/2006 gives no indication of the consequences of the Commission exceeding the three-month time limit which it lays down, in accordance with the case-law of the Court of Justice, it is necessary to examine the purpose and structure of that regulation in order to determine the consequences of exceeding that time limit (see, to that effect and by analogy, judgment of 20 January 2005, Merck, Sharp & Dohme,
C‑245/03
,
EU:C:2005:41
, paragraphs
and
).
As a preliminary point, it must be borne in mind that the time limit laid down in Article 41(2) of Regulation No 1083/2006 is a time limit placed on the Commission within which to respond to a request made to it by a third party, in this case a Member State. It is only if the absence of response within that time limit entails acceptance of the request or the loss of the Commission’s power to rule thereon that a negative response adopted outside the time limit could automatically be annulled solely because of the fact that the time limit had been exceeded (see, by analogy, judgment of 18 March 2009, Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council,
T‑299/05
,
EU:T:2009:72
, paragraph
). It must therefore be examined whether, in the light of its purpose and structure, Regulation No 1083/2006 must be interpreted as meaning that exceeding that time limit entails acceptance of the request or the loss of the Commission’s power to rule thereon.
As regards whether it is apparent from the purpose and structure of Regulation No 1083/2006 that exceeding the three-month time limit means that the application for confirmation made by a Member State will be accepted, it must be noted, firstly, that the tenor of an acceptance decision excludes such a possibility.
It is clear from Article 41(2) of Regulation No 1083/2006 that the Commission decision accepting the application for confirmation states, inter alia, the amount to which the co-financing rate of the operational programme applies (see paragraph 33 above). Only the Commission decision accepting such an application determines the base amount to which the co-financing rate flowing from the operational programme in question applies and, thus, the amount of the EU’s financial contribution. In the absence of any Commission decision, the EU’s financial contribution cannot be specifically determined and, in consequence, regarded as being confirmed.
That is, moreover, corroborated by recital 49 of Regulation No 1083/2006, which states that it must be possible for the Commission to evaluate and, as necessary, approve major projects (see paragraph 29 above). It follows therefrom that, as regards major projects, the idea underlying Regulation No 1083/2006 is that their financing by a Member State using ERDF or Cohesion Fund resources is subject to Commission approval.
Secondly, it must be noted that, when Regulation No 1083/2006 was meant to penalise a failure to observe a time limit by automatic acceptance, it expressly stated so (see, by analogy, judgment of 20 January 2005, Merck, Sharp & Dohme,
C‑245/03
,
EU:C:2005:41
, paragraph
). Thus, for example, Article 62(4) of Regulation No 1083/2006 provides that the audit strategy presented to the Commission by the monitoring committee ‘shall be considered to be accepted’ in the absence of comments by the Commission within three months of its receipt. Similarly, Article 67(4) of Regulation No 1083/2006 provides that if the Commission does not respond within the time limit laid down, the final report sent by the managing authority to the Commission ‘shall be deemed to be accepted’. Similarly, Article 89(3) of Regulation No 1083/2006 provides that the closure declaration sent by the Member State to the Commission ‘shall be considered to be accepted in the absence of observations by the Commission within [a] five-month period’.
It follows therefrom that, in the context of Regulation No 1083/2006, as is clear from its purpose and structure, the absence of response to an application for confirmation within the time limit laid down in Article 41(2) of that regulation does not entail approval of the application for confirmation.
That conclusion is not called into question by the arguments put forward by the Republic of Poland based, on the one hand, on the case-law of the Court concerning the time limit for adoption of a financial correction and, on the other, on the new tacit approval procedure provided for in the second subparagraph of Article 102(1) of Regulation No 1303/2013.
With regard to the first argument, although, indeed, as the Republic of Poland submits, in the case-law concerning the Commission’s power, provided for in Article 99 of Regulation No 1083/2006, to adopt financial corrections, the Court has held that exceeding the time limit laid down in Article 100(5) of that regulation to adopt such corrections constituted an infringement of essential procedural requirements which was to be found by the EU Court of its own motion and entailed the annulment of the decision adopted out of time (judgments of 4 September 2014, Spain v Commission,
C‑192/13 P
,
EU:C:2014:2156
, paragraphs
and
, and of 21 September 2016, Commission v Spain,
C‑140/15 P
,
EU:C:2016:708
, paragraphs
and
), that case-law cannot apply to the present case.
The object of the case-law referred to in paragraph 81 above is a time limit of a type different from that of the time limit laid down in Article 41(2) of Regulation No 1083/2006.
First of all, while, in the context of the evaluation of major projects, the time limit laid down in Article 41(2) of Regulation No 1083/2006 is a time limit within which the Commission must respond to an application for co-financing submitted to it by a Member State, in the context of the financial correction procedure, however, the time limit laid down in Article 100(5) of that regulation is a time limit within which the Commission must adopt, on its own initiative, a decision annulling all or part of the EU financial contribution to an operational programme. Thus, in essence, the first is a time limit for the grant of a financial contribution, while the second is a time limit for the annulment of a financial contribution already granted.
Next, in the context of the evaluation of major projects, in the absence of any decision on the application for confirmation adopted within the time limit and of any provision laying down the consequences of the lack of such a decision, the application for confirmation remains unanswered and cannot be regarded as being approved (see paragraphs 75 to 79 above). However, as regards financial corrections, in the absence of any decision within the time limit laid down for that purpose, the Member State maintains the contribution from the Funds which has already been granted to it. Thus, in the absence of a financial correction decision adopted within the time limit, as is clear from the case-law referred to in paragraph 81 above, the Commission cannot apply a financial correction and the Member State cannot be subjected to such a correction.
Finally, contrary to the allegations made by the Republic of Poland, it is not apparent from the case-law referred to in paragraph 81 above that the Court ruled that the time limits laid down in Article 100(5) and Article 41(2) of Regulation No 1083/2006 are of the same type. However, it is apparent from that case-law that the Court examined only the time limit set for the adoption of a financial correction decision and that it referred expressly to the nature of such a decision (judgments of 4 September 2014, Spain v Commission,
C‑192/13 P
,
EU:C:2014:2156
, paragraphs
and
, and of 21 September 2016, Commission v Spain,
C‑140/15 P
,
EU:C:2016:708
, paragraphs
,
and
).
With regard to the second line of argument, it must be noted that Regulation No 1303/2013 does not apply to the present case, since Article 152(1) thereof provides that Regulation No 1083/2006 is to continue to apply to assistance and operations, including operational programmes and major projects, approved by the Commission on the basis of that regulation and since Article 152(1) thereof adds that the applications for assistance made or approved under Regulation No 1083/2006 remain valid. Moreover, it is appropriate to note that the second subparagraph of Article 102(1) of Regulation No 1303/2013 provides for a tacit approval procedure only where the application made by the Member State is accompanied by a quality review carried out by independent experts in accordance with the third subparagraph of Article 101 of that regulation. That procedure has no equivalent in the system laid down in Articles 39 to 41 of Regulation No 1083/2006, which corroborates the conclusion that, in the context of that regulation, the Commission’s silence during the three-month time limit cannot be interpreted as tacit confirmation of the financial contribution to a major project. Furthermore, it is not in dispute that, in the present case, the project was not submitted in accordance with Article 102(1) of Regulation No 1303/2013, so that the tacit approval procedure provided for in that provision cannot apply.
With regard to whether it is apparent from the purpose and structure of Regulation No 1083/2006 that exceeding the three-month time limit entails the loss of the Commission’s power to rule on the application for confirmation made by the Member State, firstly, it must be noted that, if the Commission had to refrain from continuing its examination of the application for confirmation if the three-month time limit were exceeded, that would, in the end, undermine the aim of the Member State’s initial application, namely to obtain confirmation of a financial contribution from the ERDF or Cohesion Fund, for reasons outside its control. Similarly, if the Commission had to start a new evaluation procedure for a major project, subject to a fresh three-month time limit, that would, in practice, merely aggravate the disregard of that time limit, by postponing the decision on the application for confirmation to a later date. Furthermore, given that exceeding that time limit does not mean approval of the application, as has already been stated, any annulment of a decision on the ground that it was adopted outside that time limit would also merely aggravate the disregard of the time limit.
Secondly, it is apparent from Article 78(4) of Regulation No 1083/2006, recalled in paragraph 34 above, that a Member State may have work begun on a major project and submit the associated expenditure to the Commission well before the Commission has given its decision, independently of the time limit laid down within which that decision must be given. A Member State which opts for that possibility does so at its own risk, having regard to the fact that the Commission may make a decision refusing to confirm EU financial assistance for a major project. Accordingly, since the Member State is not required to wait for the Commission’s decision to carry out its regional development projects and declare to the Commission the associated expenditure where it is covered by the European Union, exceeding the time limit laid down for the adoption of such a decision does not deprive the Commission of the power to rule on an application for confirmation.
Thirdly, it is clear from the case-law that where, as in the present case, the legislature did not attach to administrative silence the consequence of the loss of the power to adopt a decision, there is no legal principle which results in the administration losing its power to respond to an application, even outside the time limits laid down for that purpose (see, by analogy, judgment of 19 January 2010, Co-Frutta v Commission,
T‑355/04 and T‑446/04
,
EU:T:2010:15
, paragraphs
and
).
It follows therefrom that, in the context of Regulation No 1083/2006, as is clear from its purpose and structure, the absence of response to an application for confirmation within the time limit laid down in Article 41(2) of that regulation does not entail the loss of the Commission’s power to rule on that application for confirmation.
It follows from all the foregoing that Regulation No 1083/2006 cannot be interpreted as meaning that exceeding the time limit laid down in Article 41(2) of that regulation automatically and for that reason alone entails the annulment of a rejection decision adopted out of time.
Fourthly, it is appropriate to examine whether the fact that the three-month time limit was exceeded in the present case must entail the annulment of the contested decision.
It is apparent from settled case-law that failure to comply with a time limit, such as that laid down in Article 41(2) of Regulation No 1083/2006, can result in the regulation adopted at the end of the procedure being annulled only if there is a possibility that, due to that irregularity, the procedure could have resulted in a different outcome. Whilst the party which relies on such an irregularity cannot be required to show that, but for it, the regulation concerned would have had a content more favourable to its interests, that party must nevertheless demonstrate by concrete proof that such a possibility cannot be totally ruled out (see, by analogy, judgments of 4 February 2016, C & J Clark International and Puma,
C‑659/13 and C‑34/14
,
EU:C:2016:74
, paragraph
, and of 12 June 2015, Health Food Manufacturers’ Association and Others v Commission,
T‑296/12
,
EU:T:2015:375
, paragraph
).
In the present case, the Republic of Poland has not demonstrated by concrete proof, nor even claimed, that it could not be ruled out that the administrative procedure could have resulted in a different outcome if it had been concluded within the three-month time limit laid down in Article 41(2) of Regulation No 1083/2006. Since the Republic of Poland has not proven that, if that time limit had not been exceeded, the project evaluation procedure could have had a different outcome, the fact that it was exceeded, in the circumstances of the present case, cannot lead to the annulment of the contested decision.
That being so, since the Commission infringed Article 41(2) of Regulation No 1083/2006 by ruling outside the three-month time limit, it must be recalled that a remedy for any harm caused by the failure to observe the time limit laid down in Article 41(2) of Regulation No 1083/2006 to rule on an application for confirmation can be sought before the General Court, hearing a claim for compensation (see, by analogy, judgment of 19 January 2010, Co-Frutta v Commission,
T‑355/04 and T‑446/04
,
EU:T:2010:15
, paragraphs
and
), provided that the conditions on which the non-contractual liability of the European Union and the exercise of the right to compensation for damage suffered depend, by virtue of the second subparagraph of Article 340 TFEU, are satisfied (see, to that effect, judgment of 9 September 2008, FIAMM and Others v Council and Commission,
C‑120/06 P and C‑121/06 P
,
EU:C:2008:476
, paragraph
).
It follows from all the foregoing that the second part of the first ground of appeal, alleging infringement of Article 41(2) of Regulation No 1083/2006, is unfounded and must be rejected.
…

On those grounds,
THE GENERAL COURT (Seventh Chamber),
hereby:

1.
Dismisses the action;

2.
Orders the Republic of Poland to pay the costs.

Tomljenović
Marcoulli
Kornezov
Delivered in open court in Luxembourg on 1 March 2018.
[Signatures]
(
*1
)	Language of the case: Polish.
(
)	Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.