Judgment — ECLI:EU:C:1998:223
Date: 1998-05-14
Language of the case: German
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Energy
Concepts: Statement of reasons;Appeals;Pleas in law;Rights of the defence and procedural guarantees;Limitation periods
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary
I — Preliminary observations I- 2876
II -Facts I -2877
III — Forms of order sought by the parties in the appeal proceedings I - 2880
IV — Pleas inlaw in support of the appeal I - 2880
A — Violation of the right to full legal protection I - 2880
B — Misapplication of Article 173, fifth paragraph, of the Treaty I - 2883
C — Breach of the obligation to state reasons I - 2885
(a) Scope of the obligation to state reasons I - 2886
(b) Misapplication of the Thermie Regulation I - 2888
(c) Mistake with regard to the facts I-2889
D — Infringement of the appellant's right to be heard I - 2891
E — Misuse of powers I-2894
F — Infringement of Articles 175, third paragraph, 173, fourth paragraph, and
176 of the Treaty I-2895
V — Conclusion I-2896
I — Preliminary observations
1. In this case the Court has been asked to
give judgment on the appeal by Windpark
Groothusen GmbH8iCo. Betriebs KG ('the
appellant') against the judgment delivered on
13 December 1995 by the First Chamber of
the Court of First Instance of the European
Communities 1 ('the contested judgment').
* Original language: Greek.
1 — Case T-109/94 Windfark Groothusen v Commission [1995]
ECB. II-3007.
I - 2876
WINDPARK GROOTHUSEN v COMMISSION
2. The Court of First Instance dismissed,
first, the application for annulment of the
Commission's decision of 13 January 1994
refusing Windpark the financial support
which it had requested in the framework of
the Thermie programme for 1993 and, sec­
ondly, the application for an order that the
Commission take a new decision.
II — Facts
3. The following facts emerge from the con­
tested judgment (paragraphs 1 to 16):
4. On 29 June 1990 the Council adopted
Regulation (EEC) No 2008/90 concerning
the promotion of energy technology in
Europe (Thermie programme) 2('the Ther­
mie Regulation'). The Thermie programme
covers a total of 17 sectors of application,
including wind energy.
5. In accordance with Article 8 of the Ther­
mie Regulation, the procedure for the selec­
tion of eligible projects is initiated by the
Commission, which must publish an invita­
tion to submit projects in the Official Journal
of the European Communities. For the selec­
tion of projects with a total cost exceeding
ECU 500 000, the Commission is assisted by
a committee composed of the representatives
of the Member States ('the Thermie Com­
mittee'), which delivers an opinion on draft
measures which are submitted to it by the
Commission. If the measures adopted by the
Commission are not in accordance with the
Thermie Committee's opinion, the Commis­
sion must immediately communicate them to
the Council. Pursuant to Article 10(1) of the
Thermic Regulation, the Council may then
take a different decision from the Commis­
sion.
6. For 1993, the Commission published in
the Official Journal 3of 16 July 1992 a com­
munication on the provision of financial sup­
port to projects for the promotion of energy
technology (Thermic Programme). It invited
interested parties to submit, before 1 Decem­
ber 1992, projects for possible selection to
receive financial support in 1993. It also
specified, in accordance with Article 8(2) of
the Thermie Regulation, the sectors to be
given priority, that is to say, 'low energy, low
CO2 buildings' and 'integrated urban traffic
management systems'. In addition, the Com­
mission stated that a document giving details
of the procedure for the submission of pro­
posals and information on the eligibility con­
ditions, selection criteria and other relevant
information could be obtained from it.
2 — OJ 1990 L 185, p. 1. 3 — OJ 1992 C 179, p. 14.
I - 2877
OPINION OF MR COSMAS — CASE C-48/96 P
7. The appellant is a company whose object
is to construct and operate a wind park in
the Groothusen area, near Emden in Ger­
many.
8. On 27 November 1992 the appellant sub­
mitted to the Commission an application for
aid of ECU 1 933 495 for the construction of
a wind park.
9. The Commission received approximately
700 proposals. In March 1993 the
Directorate-General for Energy drew up a
document appraising these projects. On 5
April 1993 they were examined by the tech­
nical committee for wind energy and on 3
and 4 June 1993 by the Thermie Commit­
tee. 4
10. On 19 July 1993 the Commission
decided to grant financial support to a total
of 137 projects. By the same decision it drew
up a 'reserve list' of 49 replacement projects.
Of the 52 projects in the field of wind
energy, 11 were granted financial support
and eight were entered on the reserve list. A
brief communication concerning this
decision was published in the Official Jour­
nal of 24 July 1993. 5 As stated in the con­
tested judgment, this communication reads
as follows:
'The Commission has recently decided as
follows:
— an amount of ECU 129 182 448 has been
awarded under the Thermie programme
as financial support to 137 projects for
the promotion of energy technology
(Annex I),
— a reserve list of 49 replacement projects is
established (Annex II).
Copies of Annexes I and II may be obtained
on request in writing to: ...'
11. On 5 August 1993 the Commission
informed the appellant that its project had
been placed on 'a supplementary list of
projects which may be granted financial sup­
port before 31 December 1993 if sufficient
budgetary credits become available, particu-
4 — The Commission thus established, pursuant to Article 9(2) in
conjunction with Article 10(1) of the Thermie Regulation,
the priorities for invitations to submit projects in accordance
with the so-called 'committee' procedure.
5 — OJ 1993 C 200, p. 4.
I - 2878
WINDPARK GROOTHUSEN v COMMISSION
larly if some of the projects which have
already been granted financial support have
not been carried out'. According to the
annex to that letter, the maximum financial
support for the project had been fixed at
ECU 918 028. The Commission emphasised
that it was in no way bound by the fact that
the project had been placed on the supple­
mentary list and disclaimed all responsibility
for any consequences which might ensue
from a definitive decision not to grant the
appellant financial support.
12. By fax of 9 August 1993, addressed to
the Commission, the appellant requested fur­
ther information and authorisation to com­
mence work. The European Communities
Liaison Office of the Land of Lower Saxony
thereupon informed the appellant that its
project was on the reserve list and that a
decision concerning possible financial sup­
port would be taken some time after the
beginning of September 1993.
13. By letter of 13 January 1994 to the
appellant, the Commission stated that the
appellant's project could not be granted
financial support in 1993 owing to the lack
of appropriate budgetary credits.
14. The appellant responded by letters of 9
and 23 February 1994, expressing its disap­
pointment and asking the Commission to
'review carefully [your] notice of January 13,
1994 and the selection procedure which pre­
ceded it'. The Commission replied by letter
of 16 March 1994, confirming its letters of 5
August 1993 and 13 January 1994.
15. On 17 March 1994 the appellant brought
an action before the Court of First Instance
seeking the annulment of the Commission's
decision of 13 January 1994 and an order
directing the Commission to take a new
decision in accordance with the legal prin­
ciples laid down by the Court of Justice,
with an order for costs against the Commis­
sion.
16. The Commission requested the Court of
First Instance to dismiss the action as
unfounded and to order Windpark to pay
the costs.
17. Finding that a distinction had to made
between the Commission's decision of 19
July 1993 and that in the Commission's let­
ter of 13 January 1994 to the appellant, the
Court of First Instance found that the appel­
lant's action was admissible only in so far as
it contested the latter decision (paragraph 17
et seq.). In addition, for the reasons set out
in the judgment, the Court dismissed the
appellant's three pleas in law, namely: (1)
failure to comply with an essential proce­
dural requirement in that the decision was
not accompanied by an adequate statement
I - 2879
OPINION OF MR COSMAS — CASE C-48/96 P
of reasons; (2) breach of the fundamental
rules of law governing the application of the
EC Treaty in that the appellant's right to a
hearing was infringed; and (3) misuse of
powers in that its application was refused for
no apparent reason.
III— Forms of order sought by the parties
in the appeal proceedings
18. The appellant brought this appeal against
the judgment of the Court of First Instance
by application lodged at the Registry of the
Court of Justice dated 19 February 1996,
asking the Court of Justice: (a) to set aside
the contested judgment of 13 December
1995, (b) to annul the decisions of the Com­
mission (hereinafter 'the respondent') refus­
ing the application for financial support on
the basis of the Thermie Regulation (the
appellant having been informed of those
decisions by letter from the Directorate-
General for Energy of 13 January 1994, in
conjunction with the letter of 5 August
1993), (c) to order the respondent to take a
new decision in the appellant's favour and to
grant it financial support of ECU 918 028 in
accordance with the principles of law laid
down by the Court and, finally, (d) to order
the respondent to pay the costs of the first
instance and the appeal proceedings.
19. The respondent asks the Court (a) to
dismiss the appeal and (b) to order the appel­
lant to pay the costs of the proceedings.
IV — Pleas in law in support of the appeal
20. The appellant submits that the judgment
of the Court of First Instance should be set
aside on the basis of six pleas in law: (a)
infringement of the right to full legal protec­
tion, (b) misapplication of Article 173, fifth
paragraph, of the Treaty with regard to the
date from which the period prescribed for
initiating proceedings begins to run, (c) mis­
application of Article 190 concerning the
Commission's obligation to state reasons for
its decision, (d) infringement of the appel­
lant's right to be heard, (e) misuse of powers
and, finally, (f) infringement of Articles 175,
third paragraph, 173, fourth paragraph, and
176 of the Treaty.
A — Violation of the right to full legal pro­
tection
21. Under its first plea in law the appellant
claims that the judgment should be set aside
because the Court of First Instance violated
its fundamental right to full legal pro­
tection. 6 In particular, it contends that
the Court of First Instance was wrong to
make a distinction (see paragraph 22 of
the contested judgment) between, on the
one hand, the Commission's decision of
19 July 1993 granting financial support of
6 — As enshrined in the combined provisions of Article F(2) of
the Treaty on European Union, Article 6 of the European
Convention for the Protection of Human Rights and Funda­
mental Freedoms, and Article 173, fourth paragraph, of the
Treaty. In addition, the appellant relies on the order of 29
January 1997 in Case C-393/96 P(R) Antonissen v Council
and Commission [1997] ECR 1-441, paragraph 36, and the
judgment in Case C-395/95 P Geotronics v Commission
[1997] ECR 1-2271.
I - 2880
WINDPARK GROOTHUSEN v COMMISSION
ECU 129 182 448 to 137 projects for the
promotion of energy technology (Annex I)
and drawing up a reserve list of 49 replace­
ment projects (Annex II) and, on the other
hand, the decision in the letter of 13 January
1994. Because of this distinction, the appel­
lant claims, that the Court of First Instance
examined the merits of its application only in
so far as it was directed against the decision
of 13 January 1994 whereas, in so far as it
was directed against the decision of 19 July
1993, the Court dismissed the application on
the ground that it was out of time, which
means that the Court did not examine the
grounds of annulment put forward in respect
of the latter decision and the appellant was
thereby deprived of legal protection.
22. The Court of First Instance took the
view (paragraph 23) that the Commission's
decision of 19 July 1993 was a definitive
decision so far as concerned the examination
and selection of projects to be supported
under the 1993 Thermie programme. It
accepted that no re-examination of the
projects was undertaken at the end of 1993
and the only question which arose at that
stage was whether there were still funds
available or whether the projects which had
been granted financial support had all been
carried out and the available credits thereby
exhausted. It also observed (paragraph 23)
that, although the Commission stated in its
letter to the appellant of 5 August 1993 that
it reserved the right to amend its decision,
subject to the availability of budgetary cred­
its, it had to be concluded at that time that
the appellant's project was not one of the
137 projects selected and, consequently, the
Commission had in effect refused the appel­
lant's application for financial support.
23. The abovementioned Commission deci­
sions, that is to say, (1) the decision of 19
July 1993 granting financial support to 137
projects for the promotion of energy tech­
nology, which did not include the appellant's
project, and (2) the decision in the letter of
13 January 1994 are, as described and cor­
rectly characterised in the judgment, two
decisions which are distinct from each other.
24. Furthermore, in so far as it has been
shown that the appellant had knowledge of
the first decision (dated 19 July 1993) on 5
August 1993, the action brought on 17
March 1994 was out of time, as I shall show
in detail below.
25. The Court of First Instance therefore
rightly considered that there were two dis­
tinct decisions of the Commission 7 and that
Windpark's action was admissible only in so
far as it was directed against the later
decision contained in the letter of 13 January
1994, and was out of time in so far as it was
directed against the decision of 19 July 1993
refusing the appellant's application for finan­
cial support for its project, on the ground
7 — It should be noted that this distinction was originally formu­
lated by the appellant itself, as appears from paragraph 17 of
the judgment: 'in its application, the [appellant] sought only
annulment of the Commission's decision of 13 January 1994.
However, the [appellant] indicated in its reply that, in so far
as its complaints relate to earlier decisions taken by the
Commission, its action should also be regarded as contesting
those decisions, particularly the decision of 19 July 1993'.
I-2881
OPINION OF MR COSMAS — CASE C-48/96 P
that the application was unjustified. Conse­
quently the submissions to the contrary
must be rejected as unfounded, while the
plea in law must be dismissed as inadmissible
in so far as it is sought to obtain a review of
the findings of fact by the court of trial. 8
26. The appellant's assertion that the Com­
mission 'was only prepared to grant financial
support for a maximum of ECU 918 028'
must also be rejected for two reasons. The
first, is that this assertion relates to the
appraisal of the facts, as found by the court
of trial. The second is that the Court of First
Instance expressly stated the opposite, as the
Commission correctly points out. In particu­
lar, the Court of First Instance stated (para­
graph 8) as follows: 'On 5 August 1993 the
Commission informed the [appellant] that its
project had been placed on "a supplementary
list of projects which may be granted finan­
cial support before 31 December 1993 if suf­
ficient budgetary credits become available,
particularly if some of the projects which
have already been granted financial support
have not been carried out". According to an
annex to that letter, the maximum amount of
financial support for the project had been
fixed at ECU 918 028. The Commission
emphasised that it was in no way bound by
the fact that the project had been placed on
the supplementary list and disclaimed all
responsibility for any consequences which
might ensue from a definitive decision not to
grant the applicant financial support.'
27. It is also clear from paragraph 8 of the
judgment that the appellant knew, ever since
the decision of 5 August 1993, that credits
might not be available and that it had to
challenge the decision, which damaged its
interests. 9 Consequently these submissions
merely repeat the appellant's assertions based
on facts previously submitted to the Court
of First Instance, which found them to have
no basis, and in essence the appellant is ask­
ing for them to be re-examined, which is
inadmissible in the context of an appeal. 10
28. The first plea in law must therefore be
dismissed in its entirety.
8 — See the judgments in Case C-283/90 P Vidrányi v Commis­
sion [1991] ECB. 1-4339, paragraph 12, and Case C-136/92 P
Commission v Brazzelli Lualdi and Others [1994] ECR
1-1981, paragraph 66, and the orders of 17 September 1996 in
Case C-19/95 P San Marco v Commission [1996] ECR
1-4435, paragraph 40, and 16 September 1997 in Case
C-59/96 P Koelman v Commission [1997] ECR 1-4809, para­
graph 31.
9 — On this point the Court of First Instance also observed as
follows (paragraph 27): 'The [appellant] had been informed
of the existence of the decision selecting the projects to be
awarded financial support for 1993 since August 1993, when
it received the Commission's letter of 5 August 1993. In
response to an oral question put to it by the Court, the
[appellant] admitted that at the time it had neither sought the
full text of the decision nor an individual explanation, inter
alia since it erroneously considered its situation to be prom­
ising. At the hearing, the applicant also explained that it had
not understood that the letter of 5 August 1993 amounted to
a refusal, since the Commission had told it that its project
had been placed on a "supplementary" list. On the contrary,
it believed that financial support was not ruled out. The
Commission, for its part, asserted at the hearing that it
would have provided an individual explanation if the [appel­
lant] had expressly ashed for one.'
10 — See, for example, the judgment in Case C-73/95 P Viho v
Commission [1996] ECR 1-5457, paragraphs 25 and 26, and
the orders of 26 April 1993 in Case C-244/92 P Kupka-
Floridi v ESC [1993] ECR 1-2041, paragraphs 7 to 11; of 26
September 1994 in Case C-26/94 P X v Commission [1994]
ECR 1-4379, paragraphs 10 to 13, and Koelman v Commis-
sion, cited in footnote 8, paragraph 52.
I - 2882
WINDPARK GROOTHUSEN v COMMISSION
B — Misapplication of Article 173, fifth para­
graph, of the Treaty
29. Under its second plea in law, the appel­
lant claims that the Court of First Instance
misapplied Article 173, fifth paragraph, of
the Treaty. More particularly, it contends
that, even if it were accepted that, by the
decision of 19 July 1993, the Commission
rejected the entire application for financial
support, the two-month period for bringing
proceedings was complied with as a result of
the registration of the application on 17
March 1994. In support of that assertion, the
appellant also claims that there is a contra­
diction in the statements of the Court of
First Instance and specifically between para­
graphs 9 and 28 of the judgment.
30. The appellant points out that, as stated
in paragraph 9 of the contested judgment, it
had requested further information by fax of
9 August 1993. The Commission did not
reply. According to the appellant, the Com­
mission ought to have realised from the fax
that the appellant had not understood the
exact meaning of the letter of 5 August 1993
and the Commission ought to have replied in
order to explain the precise context of its
decision. The first reply from the Commis­
sion to the appellant's request was given in
the letter of 13 January 1994, which is there­
fore the date on which the period prescribed
for initiating proceedings began to run.
31. In addition, the appellant claims that, as
the decision was not published and was not
notified to the appellant either, time began to
run from the moment at which it learned of
the decision, that is to say, from the letter of
13 January 1994. It considers that Article
173, fifth paragraph, of the Treaty must be
interpreted strictly and therefore the period
prescribed for challenging a measure begins
to run at the time when a person who is
individually concerned has actual knowledge
of it, not when he had the opportunity to
learn of it. According to the appellant it is in
conformity with the rule of law not to
require of the person concerned that he
endeavour to explore the decision and the
grounds on which it is based, but instead to
send the decision to him at his request. 11
32. Now let us now consider whether there
was a misapplication of Article 173, fifth
paragraph, of the Treaty, that is to say, what
was the beginning of the period allowed for
challenging the Commission's decision.
33. It should first be noted that the Court of
Justice has held on several occasions that,
failing publication or notification, the period
for bringing an action can begin to run only
from the moment when the party concerned
acquires precise knowledge of the content of
11 — On this point the appellant refers to the judgment in Case
C-143/95 P Commission v Sociale and Others [1997] ECR
I-1. It also relics on the judgment in Case C-84/94 Uniled
Kingdom v Council [1996] ECR 1-5755, paragraph 19, in
which the Court of Justice referred to its settled case-law
that what is merely Council practice (and therefore, accord­
ing to the appellant. Commission practice also) cannot
derogate from the rules laid down in the Treaty, and cannot
therefore create a precedent binding on the Community
institutions with regard to the correct legal basis.
I - 2883
OPINION OF MR COSMAS — CASE C-48/96 P
the decision in question and of the reasons
on which is based, in such a way as to enable
it to exercise its right of action.12 The Court
has also consistently held that 'it is for the
party which has knowledge of a decision
concerning it to request the whole text
thereof within a reasonable period'.13
34. In view of this settled case-law, I con­
sider that the Court of First Instance was not
mistaken in law when it found 14 that the
appellant was aware from August 1993 of
circumstances which ought to have led it to
take action, as it had been informed that its
project had been placed on a supplementary
list and that this entailed no obligation on
the Commission's part (paragraph 8).
35. With regard to the existence of contra­
dictions in the contested judgment, there is
in my opinion, as the Commission rightly
observed, no contradiction between para­
graphs 9 and 28. More specifically, in para­
graph 28 the Court of First Instance found
that the appellant 'did not take the opportu­
nity either to request the full text or an indi­
vidual explanation with respect to the
decision to exclude its project from the 137
projects which were awarded financial sup­
port in 1993'.
36. In paragraph 9 the Court of First
Instance stated that 'by fax of 9 August 1993,
addressed to the Commission, the [appellant]
requested further information', but that it
did not ask for the full text of the decision of
19 July 1993. Furthermore, the appellant did
not react to the communication in the
Official Journal of the European Communi­
ties, 15 nor did it ask for an individual expla­
nation of the reason for which its project
was included on the supplementary list but
could only receive financial support 'if suffi­
cient budgetary credits become available,
particularly if some of the projects which
have already been granted financial support
have not been carried out'.16 In addition, the
Court of First Instance expressly states
(paragraph 9) that 'the [appellant] requested
further information and authorisation to
commence work'. In other words, although
the appellant was aware of the existence of
the decision of 19 July 1993, which allegedly
damaged its interests, it did not ask for the
text of the decision.17
12 — See, for example, the judgments in Case C-180/88
Wirtschaftsvereinigung Eisen- und Stahlindustrie v Com­
mission [1990] ECR I-4413, paragraph 22; Case 236/86
Dillinger Hüttenwerke v Commission [1988] ECR 3761,
paragraph 14, and Commission v Socarte, cited in footnote
11, paragraph 31, and also my Opinion in Case C-309/95
Commission v Council, pending, paragraph 30 et seq.
13 — Sec, for example, the judgments cited in footnote 12,
Wirtschaftsvereinigung Eisen- und Stahlindustrie v Com­
mission, paragraphs 22 to 24, and Dillinger Hüttenwerke v
Commission, paragraph 14, and the order of the Court of
Justice of 5 March 1993 in Case C-102/92 Ferriere Acciairie
Sarde v Commission [1993] ECR I-801, paragraph 18.
14 — See paragraph 27 of the judgment, reproduced in footnote
9.
15 — Cited in footnote 5.
16 — Paragraph 8 of the contested judgment.
17 — As the Court of First Instance admits (paragraphs 3 and
48), the Commission's services had available a form, cited
by the appellant, which contains, first, details of the pro­
cedure for the submission of proposals and, second, infor­
mation on the eligibility conditions, selection criteria and
other relevant information, and adds that no interested
party was permitted to incur expenditure before the Com­
mission takes a decision on financial support.
I - 2884
WINDPARK GROOTHUSEN v COMMISSION
37. Consequently the appellant's submis­
sions concerning contradictory reasoning in
the contested judgment must be rejected as
unfounded also as regards this part of the
plea in law under consideration.
38. The second plea in law must therefore be
dismissed in its entirety.
C — Breach of the obligation to state reasons
39. Under its third plea in law, the appellant
asserts that the 1993 budget for the Thermie
programme was ECU 174 000 000, of which
ECU 129 000 000 was available for projects
for the promotion of energy technology. The
appellant then refers to the introduction to
the Thermie report, which shows that in
1993 financial support totalling ECU
140 000 000 was granted to 139 projects,
while ECU 34 000 000 was allocated to
accompanying measures. As the decision of
19 July 1993 granted approximately ECU
129 000 000 to 137 projects, the appellant
concludes that approximately ECU
11 000 000 was made available without being
allocated to specific projects.
40. Moreover, the appellant contends that
the introduction to the Thermie report does
not distinguish between dissemination
projects under Article 2 of the Thermie
Regulation and targeted projects under
Article 4. The appellant adds that no such
distinction became apparent in the procedure
before the Court of First Instance or in the
budget programme. It claims that in any
case, even if the budget funds available after
19 July 1993 had been granted to targeted
projects, the Commission ought to have
compared these projects with those of the
appellant for the purpose of making a
decision and ought to have stated the reasons
for its choice.
41. The appellant also observes that the
grounds of the Commission's decision of 19
July 1993 rejecting its application in its
entirety remain unknown and that this justi­
fies annulment of the decision. It also claims
that the Commission's letter of 13 January
1994 does not give the full text of the
decision and that the reason for the decision,
that is to say, exhaustion of the credits, is
erroneous because until 31 December 1993
the Commission had ECU 10 817 552 avail­
able for certain targeted projects. From this
the appellant concludes that the Court of
First Instance ought to have found that the
decision contained in the letter of 13 January
1994 did not state the reasons on which is
was based.
42. In support of its contention that the
Commission's assertion that all the credits
available after 19 July 1993 for the Thermic
programme were granted to certain targeted
projects is mistaken, the appellant refers to a
I-2885
OPINION OF MR COSMAS - CASE C-48/96 P
letter of 29 April 1996 from Commissioner
Papoutsis to the European Parliament. 18
43. The appellant adds that, as the introduc­
tion to the Thermie report shows that, con­
trary to the decision of 19 July 1993, the
Commission granted financial support total­
ling ECU 2 189 356 in the wind energy sec­
tor to four projects on the supplementary
list, that is to say, not targeted projects, with­
out the participation of the Thermie Com­
mittee, the Court of First Instance was
wrong in finding that this amount formed
part of those granted to targeted projects. 19
44. The appellant further submits that, in
view of Mr Papoutsis' letter to the European
Parliament, the letter of 13 January 1994
constituted notification to the appellant of
the decision of 13 December 1993, which is
not in the file. For this reason also, the
decision of 13 December 1993 20 does not
state the reasons on which it is based and
constitutes a misuse of powers.
45. I shall consider the appellant's submis­
sions concerning this plea in law in sequence
and shall divide them into three parts. First, I
shall deal with the submissions concerning
the extent of the Commission's obligation to
state the reasons for its decision of 13 Janu­
ary 1994 and, next, the manner in which the
Court of First Instance applied the provi­
sions in question. I shall then look at the
question of a mistake in law with regard to
the application of the Thermie Regulation by
the Court of First Instance, which refers to
targeted projects receiving financial support
and, finally, I shall examine the question
whether the Court of First Instance made a
mistake in the presentation of facts and in its
assessment of a fundamental factual alle­
gation, which would mean that the judgment
must be set aside.
(a) Scope of the obligation to state reasons
46. The plea in law concerning breach of the
obligation to state reasons is admissible only
in so far as it is directed at the judgment of
the Court of First Instance, not at the
decision of the Commission which is at
18 — According to the appellant, this letter bears the reference
0627/96 FR. As cited by the appellant, the letter states as
follows: (a) after a favourable opinion from the Thermie
Committee, the Commission, by decision of 19 July 1993,
made available ECU 129 180 000 for the construction of
projects promoting technologies in the energy sector, (b) In
the decision of 13 December 1993 the Commission made
available ECU 12 980 000 for the implementation of
projects, (c) In 1993 ECU 138 000 000 were made available
for the implementation of projects, (d) Subsequently, by
decision of 13 December 1993, three projects on the supple­
mentary list and three projects on which the Member States
had agreed in the course of the written procedure provided
for by Article 10(1) of Regulation No 2008/90 were given
financial support in lieu of the projects on the original list
of abandoned projects.
19 — At the hearing the appellant stated that, in addition to the
137 projects for which financial support was originally
granted by the decision of 19 July 1993, a total of 14
projects were finally granted support.
20 — In its reply the appellant, no doubt in error, refers to the
decision of 13 July 1993.
I-2886
WINDPARK GROOTHUSEN v COMMISSION
issue. However, in examining this plea it is
necessary, as I have said with regard to the
previous point, to consider the scope of the
obligation to give full and correct reasons for
the Commission's decision. I should like to
make the following observations in this
respect.
47. First, under Article 190 of the Treaty,
acts adopted by the Community institutions
must state the reasons on which they are
based. However, as the Court has consis­
tently held,21 the statement of reasons
required by Article 190 of the Treaty 'must
be appropriate to the nature of the measure
in question. It must show clearly and
unequivocally the reasoning of the institu­
tion which enacted the measure, so as to
inform the persons concerned of the justifi­
cation for the measure adopted and to enable
the Court to exercise its powers of review. It
has also been held that the statement of rea­
sons for a measure is not required to specify
the matters of fact or of law dealt with, pro­
vided that it falls within the general scheme
of the body of measures of which it forms
part.'
48. The Court has also consistently held22
that 'the requirements to be satisfied by the
statement of reasons depend on the circum­
stances of each case, in particular the content
of the measure in question, the nature of the
reasons given, and the need for information
of the undertakings to whom the measure is
addressed or of other parties to whom it is of
direct and individual concern within the
meaning of the second paragraph of Article
173 of the Treaty'.
49. In the present case, the mere fact of par­
ticipating in a programme for financial sup­
port, such as the Thermic Programme, by
submitting an application for such support,
gives rise to no rights or even advantages for
the applicant, provided always that the selec­
tion procedure laid down in each case was
followed in full and that the application was
examined objectively and impartially. This
also applies where such an application is
refused, which leaves unchanged the legal
situation of the person concerned. This
assuredly affects the obligation to state suffi­
cient reasons. Fulfilment of that obligation
presupposes that the applicant was informed
that his proposal had been examined and had
been the subject of a decision under the pre­
scribed procedure. The appellant's claim that
the statement of reasons must also show all
the reasons for which other proposals were
preferred to its own is totally unfounded. 23
From this viewpoint, therefore, the contested
judgment suffers from no defect which
would justify setting it aside.
21 — Sec, for example, Case C-353/92 Cresce v Comicii [1994]
ECR 1-3411, paragraph 19; Joined Cases C-63/90 and
C-67/90 Portugal and Spain v Council [1992] ECR I-5073,
paragraph 16, and Case C-465/93 Aliatila Fruchthandelsge-
sellschaft and Others [1995] ECR I-3799, paragraph 16.
22 — Sec Joined Cases 296/82 and 318/82 Netherlands and Leen-
warder Papierwarenfabriek v Commission [1985] ECR 809,
paragraph 19.
23 — The disclosure of such comparisons with other undertak­
ings is perhaps also a breach of the obligation of profes­
sional secrecy within the meaning of Article 214 of the
Treaty: sec Case 53/85 AKZO Chemie v Commission [1986]
LCR 1965, paragraphs 26 to 28, and also Netherlands and
Leeuwarder Papierwarenfabnek v Commission, cited in
footnote 22, paragraph 27.
I - 2887
OPINION OF MR COSMAS — CASE C-48/96 P
50. I consider that the Commission's obliga­
tion duly to state the reasons for the decision
of 13 January 1994, which was originally val­
idly contested before the Court of First
Instance, was also fulfilled because the
present case relates to a selection procedure
with a large number of participants, and the
selection criteria were known in advance by
those concerned. Furthermore, an advisory
committee (the Thermie Committee), which
was required to give a favourable opinion on
a grant of financial support to only some of
the projects, took part in the procedure for
granting such support. In principle the Com­
mission had to follow the Committee's opin­
ion in accordance with the Thermie Regu­
lation (Article 10(1)), 24 and the results of the
competition were published, which obviates
any need for an individual statement of
detailed reasons for the decision to reject an
application for financial support. 25 Clearly
this does not deprive applicants of the right
to request the results of the selection pro­
cedure, in accordance with the notice
published in the Official Journal of the Euro­
pean Communities.
51. In view of the foregoing, I consider that
the Court of First Instance was not mistaken
in law, since it found (paragraph 45) that the
Commission's letter of 13 January 1994 to
the appellant contained a sufficient and
proper statement of reasons, namely, the
exhaustion of the funds available at that time,
so that no aid could be granted for the appel­
lant's project. The Court of First Instance
therefore rightly rejected as unfounded the
appellant's plea alleging inadequacy of the
statement of reasons in so far as it concerned
the letter of 13 January 1994.
(b) Misapplication of the Thermie Regu­
lation
52. In this connection the Commission
observes that the four projects which
received financial support by way of deroga­
tion from the decision of 19 July 1993 were
placed on the supplementary list after the
opinion of the Thermie Committee and,
unlike the appellant's project, provided for
'an association of at least two independent
undertakings established in different Member
States'. Consequently, they were to be given
preference under Article 6(3)(a) of the Ther­
mie Regulation. The Commission further
submits that the nature of the appellant's
24 — Where the authority which makes the decision has a discre­
tion, the obligation to state reasons is stricter than where
the authority has a non-discretionary power: see the Opin­
ion of Advocate General Lagrange in Case 66/63 Nether­
lands v High Authority of the ECSC [1964] ECR 533.
25 — I would recall that the Court has stated that, where an offi­
cial is recruited following a competition, the administration
is not obliged to give the reasons for its decision in relation
to the unsuccessful candidates: sec Case 16/64 Rauch v
Commission [1965] ECR 179. In the judgment in Case
195/80 Michel v Parliament [1981] ECR 2861, paragraph
27, concerning the reasons for the decisions of a selection
board in competitions with a large number of candidates,
the Court has also stated that a selection board may, as a
first stage, be allowed to send candidates information only
on the criteria and the results of selection, and provide
detailed explanations only at a later stage and to candidates
who expressly request them. See Case 89/79 Bonu v Coun­
cil [1980] ECR 553, paragraph 6; Case 225/82 Verzyck v
Commission [1983] ECR 1991, paragraphs 16 and 17; and
Case 225/87 Belardinelli and Others v Court of Justice
[1989] ECR 2353, paragraph 7. See also the judgment in
Case C-213/87 Gemeente Amsterdam and VIA v Commis­
sion [1990] ECR I-221, in which the Court held that 'the
conciseness of the statement of reasons for the decision
whereby the Commission refused assistance from the Euro­
pean Social Fund for a vocational training foundation is an
unavoidable consequence of the processing by computer of
several thousand applications for assistance upon which the
Commission must adjudicate within a short period. A more
detailed statement of reasons in support of each individual
decision would therefore be likely to compromise the ratio­
nal and efficient allocation of financial assistance from the
Fund'.
I-2888
WINDPARK GROOTHUSEN v COMMISSION
project, which was a dissemination project, 26
did not permit it to be financed with funds
made available for 'specific projects'. 27 Fur­
thermore, according to the Commission, the
distinction between projects receiving finan­
cial support under Articles 2 and 4 of the
Thermie Regulation follows from that regu­
lation itself, and the classification of a project
under one of those articles cannot be ques­
tioned.
53. According to the Commission, the
decision of 13 December 1993, which related
to targeted projects, was preceded by an
invitation to tender for a targeted project
concerning hot gas cleaning. 28 This decision
allocated ECU 12 653 339 for carrying out
targeted projects. As the appellant's project
was a dissemination project, it did not
receive financial support.
54. On this point the Court of First Instance
states (paragraph 44) that 'in order to arrive
at the decision in the letter of 13 January
1994, the only question for the Commission
was whether there were still budgetary funds
available or whether the projects which had
been granted financial support had all been
carried out and the available credits thus
exhausted. Although funds were indeed still
available under the budget for the Thermie
programme in July 1993 — after the decision
had been taken to finance certain projects —
according to the Commission, they had been
awarded during the last months of 1993 to
certain "targeted" projects. Consequently, at
the end of 1993 there were no longer any
funds available'.
55. In view of the foregoing, I consider that
there was no misapplication of a rule of sub­
stantive law (the Thermie Regulation) as the
Court of First Instance referred to the dis­
tinction between targeted projects which had
finally received financial support, and other
projects which were not targeted, such as the
appellant's. Therefore the appellant's sub­
missions to the contrary must be rejected as
unfounded.
(c) Mistake with regard to the facts
56. First of all, as regards the statement of
Commissioner Papoutsis to which the appel­
lant refers in its reply, I do not think this can
be taken into account, irrespective of
whether the document cited by the appellant
is among the documents it produced and
whether there was a special meeting of the
26 — Article 2(2)(b) of the Thermic Regulation defines dissemi­
nation projects as 'projects designed to promote with a
view to their broader utilisation within the Community,
cither under different economic or geographical conditions
or with technical modifications, innovatory techniques,
processes or products which have already been applied once
but, owing to residual risk, have not yet penetrated the
market'.
27 — Article 4 of the Thermic Regulation defines 'specific
projects' ('targeted projects') as follows: 'whenever it
appears to be necessary, and in particular where a need is
not being met or where significant technological advance
could be achieved through cooperation between persons or
undertakings in at least two Member States, the initiative
may be taken to encourage or coordinate the setting-up of
specific projects, called "targeted projects"(emphasis
added).
28 — OJ 1993 C 171, p. 21.
I-2889
OPINION OF MR COSMAS — CASE C-48/96 P
Parliament in April 1996 concerning the
Thermie programme, as the Commission
casts doubt on these matters. In particular,
although Mr Papoutsis' statement constitutes
a new factual element introduced belatedly,
being raised for the first time at the appeal
stage, it cannot be taken into account
because in an appeal the powers of the Court
of Justice are confined to reviewing the find­
ings of law on the pleas argued before the
Court of First Instance. 29 In addition, as the
Court has consistently held, the appraisal by
the Court of First Instance of the evidence
put before it does not constitute (save where
the clear sense of that evidence has been dis­
torted) a point of law which is subject, as
such, to review by the Court of Justice. 30
57. Consequently the appellant's submis­
sions on this point are inadmissible.
58. The appellant also asserts that there was
an unallocated total of ECU 10 817 552. This
figure was not referred to expressly in the
judgment of the Court of First Instance, but
that Court may have taken it into account
when it observed (paragraph 44) that there
were still budgetary funds available. I do not
think that the fact that this figure is not men­
tioned in the judgment is sufficient to prove
that the judgment gave an incorrect account
of the facts. This submission must therefore
be rejected as inadmissible as it relates to the
appraisal of facts, which is outside the power
of review of the appeal court.
59. Finally, the appellant claims that the con­
tested judgment gives no indication of the
action taken on the appellant's letter sent on
9 August 1993 to the Commission because,
in actual fact, no reply was given. Again, the
Court of First Instance does not specify pre­
cisely for what reasons and in what amount
the Commission granted ECU 10 817 552 to
certain projects, or why the Commission did
not grant the appellant ECU 918 028, as the
Commission had decided in the letter of 5
August 1993 to the appellant.
60. As the Commission correctly points out,
the Court of First Instance observed (para­
graphs 7 and 24 of the judgment) that a brief
communication concerning the decision of
19 July 1993 was published in the Official
Journal of the European Communities 31 and
notified to the appellant by letter of 5
August 1993.
61. In view of the foregoing, once again I do
not consider that the abovementioned sub­
mission by the appellant shows that the
judgment is mistaken in that it did not assess
29 — See, for example, the judgment in Commission v Brazzelli
Laaldi and Others, paragraph 59, and the order in San
Marco v Commission, paragraph 49, both cited in footnote
8.
30 — See, for example, Case C-53/92 P Hilti v Commission
[1994] ECR I-667, paragraphs 10 and 42; the order in San
Marco v Commission, cited in footnote 8, paragraph 39, and
the order of 16 October 1997 in Case C-140/96 Dimitriadis
v Court of Auditors [1997] ECR I-5635, paragraph 26. 31 — See the communication cited in paragraph 10.
I - 2890
WINDPARK GROOTHUSEN v COMMISSION
an essential factual submission which, sup­
posing it to have been true, would have led
to the appellant's application being allowed.
That submission must be rejected. Other­
wise, one would be drawn into re-examining
the facts of the case, which would be con­
trary to the principles of the appeal pro­
cedure.
62. In view of the foregoing, the third plea
in law must be dismissed in its entirety.
D — Infringement of the appellant's right to
he heard
63. The appellant claims that any person
directly and individually concerned by a
decision has, by virtue of certain fundamen­
tal principles of Community law, a right to
be heard so that he can make known his
views on the matters of law or fact which
have been taken into account to his detri­
ment and which form the basis of the dis­
puted decision to refuse his application.
Relying on the Court's case-law, 32 the
appellant submits that the right to be heard
must be accorded 'irrespective of any practi­
cal difficulties'.
64. According to the appellant, the Court of
First Instance was wrong in holding that the
Commission could refuse to hear the persons
concerned by a procedure for obtaining
financial support, the conditions of which
had been previously published, so that it was
for those persons themselves to assess, with
regard to submitting an application for that
purpose, whether they fulfilled the condi­
tions for obtaining support.
65. Thus the appellant observes that, as the
trial court found, the appellant's project was
entered on the supplementary list and ful­
filled the conditions for receiving financial
support, like the other 137 projects which
were finally selected. The appellant added at
the hearing before the court that, if the
Commission had given it an opportunity to
be heard, it could have stated the reasons
which would have led it (the Commission)
to grant financial support to the appellant's
project.
66. The appellant submits that the Court of
First Instance made an error of assessment in
finding, on the ground that the appellant did
not request further information, that there
was no foundation for the claim that its right
to be heard was infringed (paragraph 49 of
the judgment), although in paragraph 9 the
Court of First Instance found that further
information had been requested in the fax of
9 August 1993.
67. Finally, according to the appellant, the
Court of First Instance was wrong not to
take account of the ECU 10 817 552 which
the Commission granted to targeted projects
between 19 July and 31 December 1993, a
matter on which the appellant also ought to
have been heard.
32 — Sec Case C-32/95 P Commission v Lisrestal and Others
[1996] ECR I-5373.
I-2891
OPINION OF MR COSMAS — CASE C-48/96 P
68. The appellant's arguments raise the ques­
tion of the extent to which the persons con­
cerned are entitled to be heard before the
adoption of a decision granting, financial sup­
port to certain projects, to the exclusion of
other projects, a problem which also arises in
connection with support for the Thermie
programme.
69. In my opinion, the appellant's argu­
ments, as the Commission has rightly-
pointed out, are not such as to call into ques­
tion the legal validity of paragraphs 48 to 50
of the contested judgment.
70. With regard to the plea that the appel­
lant's right to be heard was infringed, 33 this
was dismissed by the Court of First Instance
on the following grounds (paragraph 48):
'The Court notes first that the Commission
explained the procedure for the submission
of projects for financial support under the
Thermie programme in the information bro­
chure referred to in the communication
inviting interested parties to submit projects,
published in the Official Journal on 16 July
1992 ... That document states: "Once the
proposal has been submitted, proposers are
invited not to submit any supplementary
information to the Commission unless spe­
cifically requested by the Commission ser­
vices". Furthermore, it is in accordance with
the procedure in financial support pro­
grammes for candidates for such support not
to be given a hearing during the selection
procedure, which is conducted on the basis
of the documentation submitted by them.
That procedure is appropriate in situations
where hundreds of applications must be
evaluated and it therefore does not constitute
an infringement of the right to a hearing.'
71. The Court of First Instance continued as
follows (paragraph 49): '... since the [appel­
lant] did not request further information
from the Commission following the publica­
tion in the Official Journal of 24 July 1993 of
the communication regarding the Commis­
sion's decision granting financial support to
137 projects or following its letter of 5
August 1993, the Commission was not under
a duty to give the [appellant] an opportunity
to make known its views before the Com­
mission sent the letter of 13 January 1994.
From that point of view also, the right to a
hearing has not been infringed.' 34
72. This assessment by the trial court is cor­
rect since, in an administrative procedure for
granting financial support and involving a
large number of applicants, as in the present
case, there is no obligation to give the under­
taking concerned (in the present case, the
appellant) an opportunity to state its point of
view effectively. The procedure in question
was not directed against a person (here the
appellant) who responded to the invitation
to submit projects, and the decision was not
taken on the basis of specific criteria
33 — The Thermie Regulation itself expressly provides that the
procedure concerned is entirely a written procedure (see
Article 8). 34 — See also paragraph 50 of the judgment.
I - 2892
WINDPARK GROOTHUSEN v COMMISSION
connected with the conduct of that person,35
but on the basis of the application file which
it had lodged.
73. Furthermore, in the context of a pro­
cedure such as that laid down by the Ther­
mie Regulation, if financial support is not
granted to an undertaking, this cannot be
regarded as having a significant adverse effect
on its interests 36 or, more specifically, it does
not adversely affect a legal situation which is
favourable to the appellant, so that the insti­
tution which issues the decision would have
to give it an opportunity to express its view­
point as a person affected. 37
74. Finally, in my opinion, this conclusion is
dictated by the fact that refusal of an applica­
tion for financial support docs no more than
prevent the mere expectation which arises
when that application is lodged from becom­
ing a fully fledged right to receive such sup­
port which, if it were infringed, would make
it necessary to observe the abovementioned
principle. In other words, the refusal of such
an application does not give rise to a legal
situation unfavourable to the operator con­
cerned and does not adversely affect him in
such a way that the institution adopting the
decision would have to give him an opportu­
nity to state his views as a person affected.
75. In view of the foregoing, I think that the
present case differs clearly from the one
which was decided by the judgment of the
Court of First Instance in Case T-450/93 38
and then the judgment of the Court of Jus­
tice in Commission v Lisrestal and Others, 39
which was given on the Commission's
appeal against the judgment of the trial
court. It is precisely because the premiss
chosen is wrong that the judgment in that
case cannot be transposed to the present case
and therefore I do not consider that a mis­
take has been shown to exist in the contested
judgment.
76. More precisely, in Case C-32/95 P, the
Court held "° that Observance of the right to
be heard is, in all proceedings initiated
against a person which are liable to culmi­
nate in a measure adversely affecting that
person, a fundamental principle of Commu­
nity law which must be guaranteed even in
the absence of any rules governing the pro­
ceeding in question ... That principle requires
that the addressees of decisions which sig-
35 — Sec Case C-170789 BEUC v Commission [1991] ECR
I-5709, ParaGraphs 21 and 22, in which the Court held that
respect for the right to a fair hearing in the context of an
anti-dumping and anti-subsidy proceeding did not entail
access tp the non-confidential documents relating to the
proceeding, if the proceeding could not result in a measure
adversely affecting the person seeking access, in that case
the European Office of Consumer Unions (BEUC), as no
allegation had been made against it.
36 — In other words, in the present case not only can the pro­
cedure not lead to a sanction against the appellant, but it
has no other unfavourable consequences for it; sec also
Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR
1-3187, paragraph 15, relating to the right to a fair hearing
in the context of administrative anti-dumping procedures
and the obligation of the Community institutions diligently
to provide information for the undertakings concerned.
37 — This is a separate question from the question whether the
conditions for initiating proceedings against the decision arc
fulfilled under Article 173, fourth paragraph, of the Treaty.
38 — Lisrestal and Others v Commission [1994] ECR II-1177.
39 — Sec the judgment cited in footnote 32.
40 — Sec paragraph 21. Sec also Case C-135/92 Fiskano v Com­
mission [1994] ECR I-2885, paragraph 39, and Joined Cases
C-48/90 and C-66/90 Netherlands and Others v Commis­
sion [1992] ECR I-565, paragraph 44.
I - 2893
OPINION OF MR COSMAS — CASE C-48/96 P
nificantly affect their interests should be
placed in a position in which they may effec­
tively make known their views'. Conse­
quently, where the Commission intends to
reduce financial assistance originally granted,
the beneficiary must be placed in a position
in which it can effectively make known its
views on the matters taken into account to
its detriment in the grounds for the decision
reducing the assistance. 41
77. In the present case, as the Court of First
Instance correctly points out (paragraph 50),
no financial support was granted to the
appellant, which had merely been placed on
a reserve list of possible beneficiaries of
Community financial support.
78. In view of the foregoing, the fourth plea
in law must be dismissed in its entirety.
E — Misuse of powers
79. Under the fifth plea in law the appellant
submits in essence that the Court of First
Instance was mistaken in law in not annul­
ling the Commission's decision although, by
adopting the decision, the Commission had
misused its powers and also abused its dis­
cretion.
80. More specifically, the appellant contends
that the Court of First Instance was wrong
in holding that the Commission had made a
correct assessment of the appellant's project
because it followed the opinion of the Ther­
mie Committee. The appellant points out
that the Committee met before the decision
of 19 July 1993 was taken. Since the Court of
First Instance had ruled that it was inadmis­
sible to examine events which preceded that
date, it ought to have verified whether the
Commission misused its powers by granting
financial support to other applicants in the
period from 19 July to 31 December 1993.
Since financial support was accorded to tar­
geted projects (paragraph 44 of the contested
judgment) and not to projects on the reserve
list, the Thermie Committee was not
involved. The appellant submits that, since
the Commission put forward no grounds for
acting in this way, it misused its powers,
although it enjoys a wide discretion. Accord­
ing to the appellant, this ground of appeal
relates to the fact that the Court of First
Instance infringed the principle that a discre­
tion must be exercised before a decision is
adopted, and here it was not.
81. The appellant adds that even though the
Commission espoused the opinion of the
Thermie Committee, it cannot be maintained
that the latter took its decision without
wrongly exercising its discretion or, if the
41 — As the Court of First Instance stated in Lisrestal and Oth­
ers v Commission, cited in footnote 38. At the appeal stage
(Commission v Lisrestal and Others, cited in footnote 32,
paragraphs 21 to 38), the Court of Justice stated that this
assessment was not mistaken in law.
I - 2894
WINDPARK GROOTHUSEN v COMMISSION
discretion was properly exercised (which has
not been proved), that no other decision
could have been taken.
82. Furthermore, according to the appellant,
the Court of First Instance committed an
error in law in failing to take account of the
fact that the independent technical experts of
the Commission who placed the project on
the reserve list (paragraph 56 of the con­
tested judgment) may, as officials of the
Member States, have allowed themselves to
be influenced by national economic interests.
83. On this point the Court of First Instance
found (paragraph 58) that 'the [appellant] has
not adduced any matter of fact or law show­
ing that the assessment of its project by the
Commission, in conjunction with the Ther­
mic Committee, was vitiated by manifest
error or misuse of power'.
84. Let me begin with two observations.
First, the Court of First Instance rightly
took the view, as I have already said, that
only the action against the decision in the
letter of 13 January 1994 was admissible.
Second, it found that the appellant had not
produced to it in good time and in due form
the relevant evidence, which had to be suffi­
ciently secure from both the legal and factual
viewpoints to show clearly, first, that the
Commission had misused its powers, that is
to say, with the exclusive or main purpose of
achieving an end other than that stated,42
and, second, had exercised its discretion
improperly.
85. I consider that such evidence cannot be
adduced in appeal proceedings because that
would lead the Court of Justice to
re-examine the merits of the case, which falls
outside the limits of review in appeal pro­
ceedings.
86. The fifth plea in law must therefore be
dismissed.
F — Infringement of Articles 175, third para­
graph, 173, fourth paragraph, and 176 of the
Treaty
87. Under its sixth plea in law the appellant
contends that Articles 175, third paragraph,
173, fourth paragraph, and 176 of the Treaty
were infringed because the Court of First
Instance did not take account of the differ­
ences existing between the actions based on
each of those articles.
42 — See, for example. United Kingdom v Council, cited in foot­
note 11, paragraph 69, and Case C-156/93 Parliament v
Commission [1995] ECR I-2019, paragraph 31.
I - 2895
OPINION OF MR COSMAS — CASE C-48/96 P
88. More specifically, the appellant maintains
that the Commission did not duly give a
decision on the application for financial sup­
port limited to ECU 918 028 which the
appellant submitted on 27 November 1992.
The appellant claims that it is entitled to rely
on Article 175, third paragraph, of the
Treaty. The Court of Justice must take
account of the fact that the decision of 19
July 1993 confirmed that the appellant's
project could receive support because the
project was on the reserve list. Furthermore,
it has been proved that the Commission still
had ECU 10 817 552 available in the second
half of 1993 and this was granted to projects
on the reserve list. Consequently, the Court
of Justice will have to find that the Commis­
sion must take a decision in this respect and
the Court must state the factors determining
that decision.
89. I have already proposed that all the other
grounds for annulment be rejected, either
because they are inadmissible or unfounded.
It is unnecessary to examine what may be
the consequences of a decision setting aside
the contested judgment.
90. I should merely like to observe that, in
deciding to reject the corresponding claim by
the appellant (paragraph 61), the Court of
First Instance applied settled case-law of the
Court of Justice 43 when it held, on the
appellant's claim that the Court should
direct the Commission to 'take a new
decision in accordance with the legal prin­
ciples laid down by the Court of Justice',
that 'this Court is not entitled, when exercis­
ing judicial review of legality, to issue direc­
tions to the institutions'. The Court of First
Instance added, correctly, that 'it is for the
administration concerned to adopt measures
to implement a judgment given in proceed­
ings for annulment'.
91. Consequently this last plea appeal must
also be dismissed.
V — Conclusion
92. Having regard to all the foregoing considerations, I propose that the Court
should:
(1) dismiss the appeal and
(2) order the appellant to pay the costs.
43 — Cf. the judgment in AKZO Chemie v Commission, cited in
footnote 23, paragraph 23.
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