# C_2006310EN.01000201.xml

| 16.12.2006 | EN | Official Journal of the European Union | C 310/2 |
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16.12.2006

EN

Official Journal of the European Union

C 310/2

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Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid

(Case C-384/06)

(2006/C 310/04)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

Parties to the main proceedings

Applicant: Gemeente Rotterdam

Applicant:

Defendant: Minister van Sociale Zaken en Werkgelegenheid

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?

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(1)  OJ L 374, p. 1.

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