Opinion of the Advocate General — ECLI:EU:C:2009:84
Date: 2009-02-12
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Economic, social and territorial cohesion;European Regional Development Fund (ERDF)
Procedure: Action for annulment;Action for annulment - inadmissible;Appeal - successful;Appeal - decision unnecessary
Origin: Italy

Summary of the Judgment 1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them (Art. 230, fourth para., EC) 2. European Communities – Judicial review of the legality of the acts of the institutions – Need for natural or legal persons to have recourse to a reference for a preliminary ruling on validity (Arts 10 EC, 230, fourth para., EC and 234 EC) 1. On the basis of the fourth paragraph of Article 230 EC, a local or regional entity may, to the extent that it has legal personality under national law, institute proceedings against a decision addressed to it or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to it. In order to satisfy the requirement that the decision forming the subject-matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 230 EC, two cumulative criteria must be met, namely, first, the contested Community measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules. With regard to the first criterion, the designation of a regional or local entity in a decision to grant Community financial assistance as the authority responsible for the implementation of a European Regional Development Fund project does not imply that that entity is itself entitled to the assistance. In addition, neither does the fact that that entity is referred to as the authority responsible for the application for financial assistance have the effect of placing it in a direct relationship with the Community financial assistance, which the decision to grant states was applied for and granted to the Member State concerned. The mere fact that a consortium that brings together various national public entities, including the Member State, and with which the Commission is not linked in any way was designated by name as beneficiary of the Community financial assistance in the decision to grant does not imply that it was itself entitled to the financial assistance. With regard to the second criterion for direct concern, the very fact that the national authorities stated their intention to recover the sums wrongly received by the consortium concerned is, in the absence of obligations in that regard pursuant to Community law, an expression of an autonomous will on their part. It follows that the fact that, in a letter sent to the Commission, the national authorities expressed their intention of recovering from that consortium the financial consequences of any Commission decision to withdraw the Community financial assistance is insufficient for the purpose of establishing the direct interest required by the fourth paragraph of Article 230 EC. It is not possible solely from the legally non‑binding pronouncement by the national authorities of their intention to recover the assistance from such a consortium to arrive at the conclusion that it is directly concerned, since, amongst other things, it cannot be ruled out that special circumstances might lead the Member State, as one of the consortium’s shareholders, to forbear to claim the repayment from it. (see paras 42, 45, 47-49, 54-57, 60) 2. Whilst individuals are entitled to effective judicial protection of the rights they derive from the Community legal order, invoking the right to such protection cannot call into question the conditions laid down in Article 230 EC. The judicial protection of natural or legal persons who are unable, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, directly to challenge Community measures must be effectively guaranteed by a right of action before national courts. The latter are required, in accordance with the principle of cooperation in good faith laid down by Article 10 EC, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables those persons to challenge before the courts the legality of any decision or other national measure relating to the application to them of a Community act by pleading the invalidity of such an act and by asking them to make a reference to the Court of Justice for a preliminary ruling on validity. (see paras 65-66)