# C_2006310EN.01000301.xml

| 16.12.2006 | EN | Official Journal of the European Union | C 310/3 |
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16.12.2006

EN

Official Journal of the European Union

C 310/3

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Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Sociaal Economische Samenwerking West-Brabant v Algemeene Directie voor de Arbeidsvoorziening

(Case C-385/06)

(2006/C 310/05)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

Parties to the main proceedings

Applicant: Sociaal Economische Samenwerking West-Brabant

Applicant:

Defendant: Algemeene Directie voor de Arbeidsvoorziening

Defendant:

Question(s) referred

| 1. | a) | Can the Member State or one of its authorities derive a competence directly from a regulation — without a basis in national law? |
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1.

a)

Can the Member State or one of its authorities derive a competence directly from a regulation — without a basis in national law?

| b) | If so, does Article 23(1) of Council Regulation (EEC) No 4253/88 (1) of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation No 2082/93 of 20 July 1993 (‘the coordination regulation’) confer authority to withdraw an order on the granting of a subsidy and to claim back the sum paid, on the basis that Article 23 of the coordination regulation requires the Member State to do that in so far as irregularities or negligence within the meaning of the said Article 23 are involved? |
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b)

If so, does Article 23(1) of Council Regulation (EEC) No 4253/88 (1) of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation No 2082/93 of 20 July 1993 (‘the coordination regulation’) confer authority to withdraw an order on the granting of a subsidy and to claim back the sum paid, on the basis that Article 23 of the coordination regulation requires the Member State to do that in so far as irregularities or negligence within the meaning of the said Article 23 are involved?

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| 2. | If not, is a national legal provision like Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law), on the basis of which the authority may withdraw the determination of the subsidy or amend it to the detriment of the beneficiary if (a) there are facts or circumstances of which it could not reasonably have been aware at the time the subsidy was determined and which would have resulted in a lower subsidy being determined than that in the order on the granting of the subsidy, (b) the determination of the subsidy was made in error and the beneficiary knew this or should have known it, or (c) after the determination of the subsidy, the beneficiary has not fulfilled the obligations attached thereto, to be interpreted, pursuant to Article 10 EC in conjunction with Article 249 EC, in a manner that conforms to the regulation? |
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2.

If not, is a national legal provision like Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law), on the basis of which the authority may withdraw the determination of the subsidy or amend it to the detriment of the beneficiary if (a) there are facts or circumstances of which it could not reasonably have been aware at the time the subsidy was determined and which would have resulted in a lower subsidy being determined than that in the order on the granting of the subsidy, (b) the determination of the subsidy was made in error and the beneficiary knew this or should have known it, or (c) after the determination of the subsidy, the beneficiary has not fulfilled the obligations attached thereto, to be interpreted, pursuant to Article 10 EC in conjunction with Article 249 EC, in a manner that conforms to the regulation?

| 3. | If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations? |
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3.

If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations?

| 4. | If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether the national principles of legal certainty and the protection of legitimate expectations which underlie Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate expectations which are to be complied with when applying the coordination regulation. |
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4.

If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether the national principles of legal certainty and the protection of legitimate expectations which underlie Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate expectations which are to be complied with when applying the coordination regulation.

| 5. | Is it of any relevance, having regard to Article 10 EC when applying the Community law principles of legal certainty and the protection of legitimate expectations, that the beneficiary is a legal person under public law? |
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5.

Is it of any relevance, having regard to Article 10 EC when applying the Community law principles of legal certainty and the protection of legitimate expectations, that the beneficiary is a legal person under public law?

| 6. | Does it follow from Article 23(1) of the coordination regulation that the determination of the subsidy is to be withdrawn and the sums paid are to be recovered if it is established that the Member State has already repaid an unduly granted subsidy to the European Social Fund, or has in any event made a ruling to that effect, if, either on the basis of Article 23(1) of the coordination regulation or on the basis of Article 4.49.1 of the Alegemene Wet Bestuursrecht interpreted in accordance with the regulation, the determination of the subsidy is to be withdrawn and the sums paid are to be recovered? |
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6.

Does it follow from Article 23(1) of the coordination regulation that the determination of the subsidy is to be withdrawn and the sums paid are to be recovered if it is established that the Member State has already repaid an unduly granted subsidy to the European Social Fund, or has in any event made a ruling to that effect, if, either on the basis of Article 23(1) of the coordination regulation or on the basis of Article 4.49.1 of the Alegemene Wet Bestuursrecht interpreted in accordance with the regulation, the determination of the subsidy is to be withdrawn and the sums paid are to be recovered?

| 7. | If there is no duty to withdraw and recover under Article 23(1) of the coordination regulation, are there other provisions of Community law, such as for example Article 4(1) of Regulation No 2988/95 (2) of 18 December 1995 on the protection of the European Communities' financial interests, which contain a suggestion as to the legal basis on which the Member State is obliged, directly or through interpretation in conformity with the regulation of Article 4.49.1 of the Algemene Wet Bestuursrecht, to withdraw the determination of, and claim repayment of, subsidies granted in breach of Community law, such as that in dispute here? |
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7.

If there is no duty to withdraw and recover under Article 23(1) of the coordination regulation, are there other provisions of Community law, such as for example Article 4(1) of Regulation No 2988/95 (2) of 18 December 1995 on the protection of the European Communities' financial interests, which contain a suggestion as to the legal basis on which the Member State is obliged, directly or through interpretation in conformity with the regulation of Article 4.49.1 of the Algemene Wet Bestuursrecht, to withdraw the determination of, and claim repayment of, subsidies granted in breach of Community law, such as that in dispute here?

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(1)  OJ L 374, p. 1.

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(2)  OJ L 312, p. 1.

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