Judgment — ECLI:EU:T:2000:20
Date: 2000-01-27
Language of the case: Portuguese
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: European Social Fund (ESF)
Concepts: European Social Fund;General;Definition of the institution's position
Procedure: Action for annulment - unfounded;Action for failure to act - inadmissible
Origin: Portugal

Summary of the Judgment 
1. Actions for failure to act — Institution must be called upon to act — Position to be 
defined within the meaning of Article 175, second paragraph, of the Treaty (noiv 
Article 232, second paragraph, EC) — Draft decisions suspending financial assistance 
addressed, pursuant to Article 6(1) of Regulation No 2950/83, to the recipients 
(EC Treaty, Art. 175, second para, (now Art. 232, second para., EC); Council 
Regulation No 2950/83, Art. 6(1» 
2. Actions for failure to act — Institution must be called upon to act — Position defined, 
bringing the failure to act to an end — Decisive date — Date on which the person who 
had called upon the institution to act receives the document defining a position 
(EC Treaty, Art. 175, second para, (now Article 232, second para., EC)) 
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SUMMARY — JOINED CASES T-194/97 AND T-83/98 
3. Actions for failure to act — Failure to act brought to an end before proceedings 
initiated — Inadmissible 
(EC Treaty, Arts 175 and 176 (now Arts 232 EC and 233 EC)) 
4. Social policy — European Social Fund — Financial assistance for vocational train­
ing — Accuracy of facts and accounts in final payment claims to be certified by the 
Member States — Scope 
(Council Decision 83/516, Art. 2(2)) 
5. Social policy — European Social Fund — Financial assistance for vocational train­
ing — Commission decision adopted on the basis of Article 6(1) of Regulation 
No 2950/83 — Evaluation of complex facts and accounts —Judicial review — Limits 
(Council Regulation No 2950/83, Art. 6(1)) 
6. Social policy — European Social Fund — Financial assistance for vocational train­
ing — Decision suspending financial assistance — Commission under a duty to adopt a 
decision within a reasonable time — Expiry of the deadline — Consequences 
(EC Treaty, Art. 176 (now Art. 233 EC); Council Regulation No 2950/83, Art. 6(1)) 
1. Although draft decisions suspending 
financial assistance from the European 
Social Fund which, pursuant to Arti­
cle 6(1) of Regulation No 2950/83 on 
the implementation of Decision 83/516 
on the tasks of the European Social 
Fund, are addressed by the Commis­
sion to the recipients are intermediate 
acts whose purpose is to prepare deci­
sions and, as such, not open to chal­
lenge by way of an action for annul­
ment, they none the less constitute the 
defining of a position for the purposes 
of the second paragraph of Article 175 
of the Treaty (now the second para­
graph of Article 232 EC). 
(see para. 54) 
2. In order to determine whether an 
institution formally called upon to act 
has defined its position within the two-
month period prescribed in the second 
paragraph of Article 175 of the Treaty 
(now the second paragraph of Arti­
cle 232 EC), it is necessary to verify 
whether the definition of its position 
was brought to the attention of the 
person who called upon it to act within 
the prescribed period. Consequently, 
the failure to act comes to an end, not 
on the day on which the institution 
actually defines its position, but on the 
day on which the person who called 
upon it to act received the document by 
which it defined its position. 
(see para. 55) 
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BRANCO V COMMISSION 
3. An action for failure to act is inadmis­
sible where the defendant institution 
called upon to act had defined a 
position after the two-month period 
laid down in the second paragraph of 
Article 175 of the Treaty (now the 
second paragraph of Article 232 EC) 
expired but before the action was 
brought. A judgment of the Court 
which, in such circumstances, found 
that there had been a failure to act on 
the part of the institution could not 
give rise to the measures for compli­
ance referred to in the first paragraph 
of Article 176 of the Treaty (now the 
first paragraph of Article 233 EC). 
(see paras 55-58) 
4. In so far as a Member State confirms 
the accuracy of the facts and accounts 
in claims for final payment of financial 
assistance from the European Social 
Fund, it is responsible to the Commis­
sion for the certifications which it 
submits. Furthermore, under Arti­
cle 2(2) of Decision 83/516 on the 
tasks of the European Social Fund 
and Article 7(1) of Regulation 
No 2950/83 on the implementation of 
Decision 83/516, the relevant Member 
States are to guarantee the successful 
completion of operations financed by 
the Fund and the Commission may 
check the final payment claims '[with­
out prejudice to any controls carried 
out by the Member States'. Those 
obligations and powers of the Member 
States are not limited by any restriction 
in time. Accordingly, where the Mem­
ber State has already certified the 
accuracy of the facts and accounts in 
the claim, it may still alter its assess­
ment if it considers that there are 
irregularities which had not been pre­
viously detected. 
(see paras 64-67) 
5. Application of Article 6(1) of Regula­
tion No 2950/83 on the implementa­
tion of Decision 83/516 on the tasks of 
the European Social Fund, under which 
the Commission may suspend, reduce 
or withdraw financial assistance from 
the European Social Fund where it is 
not used in conformity with the condi­
tions set out in the decision of 
approval, may entail the need to assess 
complex facts and accounts. In making 
such assessments, the Commission 
enjoys a wide discretion. Accordingly, 
the Community judicature must limit 
its review of that assessment to verify­
ing that the procedural rules have been 
observed, that the facts relied on in 
making the contested choice are accu­
rate, and that there has been no 
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SUMMARY —JOINED CASES T-194/97 AND T-83/98 
manifest error in assessing those facts 
or misuse of powers. 
(see paras 73, 76) 
6. It is for the Commission to decide 
claims for final payment of financial 
assistance from the European Social 
Fund by taking a decision within a 
reasonable time, either ordering the 
balance to be paid in full or adopting 
decisions suspending, reducing or with­
drawing funding. 
Although the fact that there has been 
unreasonable delay in the adoption of a 
decision may in certain circumstances 
lead to the annulment of a decision, 
that cannot be the outcome in the case 
of a decision to suspend funding, 
adopted by the Commission because it 
did not have enough information to 
calculate the exact amount of eligible 
expenditure. If such decisions were 
annulled on the sole ground that they 
were late, the Commission could do no 
more than adopt, pursuant to Arti­
cle 176 of the Treaty (now Article 233 
EC), fresh decisions to suspend assis­
tance since it would still not have the 
information needed to calculate eligible 
expenditure. That being so, an annul­
ling judgment would be wholly point­
less. 
(see paras 89-91) 
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