Judgment;Judgment (extracts) — ECLI:EU:T:2018:107
Date: 2018-03-01
Language of the case: Polish
Court formation: Seventh Chamber
Subject matter: Economic, social and territorial cohesion;European Regional Development Fund (ERDF)
Procedure: Action for annulment - unfounded
Origin: Poland

Summary — Judgment of the General Court (Seventh Chamber) of 1 March 2018 1. Economic, social and territorial cohesion — Structural assistance — European Union funding — Majors projects — Evaluation — Discretion of the Commission — Judicial review — Limits (Council Regulation No 1083/2006, Art. 41) 2. Actions for annulment — Contested act — Evaluation of legality in the light of the information available at the time of adoption of the measure (Art. 263 TFEU) 3. Economic, social and territorial cohesion — Structural assistance — European Union funding — Major projects — Evaluation — Criteria for evaluation — No obligation to adhere to the selection criteria set by the Member State which selected the project — No breach of the principle of cooperation in good faith (Art. 4(3) TEU; Council Regulation No 1083/2006, Recital 49 and Arts 39 to 41) 4. Member States — Obligations — Duty of cooperation in good faith with the EU institutions — Reciprocity (Art. 4(3) TEU) 5. Economic, social and territorial cohesion — Structural assistance — European Union funding — Majors projects — Evaluation — Time-limit — Exceeded — Consequences — Annulment — Conditions (Council Regulation No 1083/2006, Art. 41(2)) 1. See the text of the decision. (see paras 35-38) 2. See the text of the decision. (see para. 41) 3. When the Commission is called upon to assess a major project selected by a Member State with a view to financing by the European Regional Development Fund (ERDF) and to take a decision under Article 41 of Regulation No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund, it is not restricted by the selection criteria set by that Member State. As is clear from Regulation No 1083/2006, that evaluation by the Commission differs from the selection made by the Member State both in its methods and its objective. Firstly, it is in the sole context of the relation between the Commission and the Member State that the operations for the Commission to assess and confirm, or not, an ERDF or Cohesion Fund financial contribution to a Member State for a major project. The Commission makes no selection of the major projects proposed to the national authorities by the applicants but merely, and solely as regards the Member States, assesses major projects already selected by the national authorities and submitted to the Commission to confirm or refuse an ERDF or Cohesion Fund financial contribution. Secondly, the Commission’s evaluation does not seek to check the selection made by the Member State in the light of the selection criteria set by the monitoring committee but to assess, in the light of the information provided for that purpose in Article 40 of Regulation No 1083/2006 and contained in the request for confirmation, as stated in recital 49 of that regulation, the purpose and impact of the major project and the methods by which the EU resources are proposed to be used, which evaluation is to be carried out, under Article 41(1) of that Regulation, by assessing the major project on the basis of that information, its coherence with the priorities of the operational programme, its contribution to the achievement of the objectives of those priorities and its coherence with other EU policies. Furthermore, since the Commission is not bound by the selection criteria set by the Member State in the context of the evaluation of a major project under Article 41 of Regulation No 1083/2006, the fact that it did not restrict its evaluation to those criteria does not constitute a breach of the principle of cooperation in good faith. When a Member State makes a request for confirmation in respect of a major project, the evaluation of that request is subject to the rules laid down in Articles 39 to 41 of Regulation No 1083/2006. Reliance on the principle of cooperation in good faith cannot lead to the application of different rules or, in particular, to a restriction to the selection criteria set by the Member State. That conclusion is not called into question by the fact that, in the context of the work of the monitoring committee, a Commission representative did not dispute the selection criteria on the basis of which the project was selected. The lack of objection cannot be interpreted as meaning that the Commission is bound to confirm, in the context of the evaluation procedure laid down in Articles 39 to 41 of Regulation No 1083/2006, a financial contribution to every major project selected by the managing authority on the basis of those criteria. (see paras 48-51, 54, 55, 57) 4. See the text of the decision. (see para. 53) 5. With regard to the adoption by the Commission of a decision regarding the financing, by the European Regional Development Fund (ERFD), of a major project selected by a Member State, the time limit set out in Article 41(2) of Regulation No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund is a mandatory time limit. As regards the consequences of exceeding the time limit, it is clear from purpose and structure of Regulation No 1083/2006 that the absence of response to an application for confirmation within the time limit laid down in Article 41(2) of that regulation does not entail approval of the application for confirmation. Nor does the absence of such a response entail the loss of the Commission’s power to rule on that application for confirmation. It follows from all the foregoing that Regulation No 1083/2006 cannot be interpreted as meaning that exceeding the time limit laid down in Article 41(2) of that regulation automatically and for that reason alone entails the annulment of a rejection decision adopted out of time. Furthermore, since it is not proven that, if that time limit had not been exceeded, the project evaluation procedure could have had a different outcome, the fact that it was exceeded cannot lead to the annulment of a decision adopted out of time. Failure to comply with a time limit, such as that laid down in Article 41(2) of Regulation No 1083/2006, can result in the regulation adopted at the end of the procedure being annulled only if there is a possibility that, due to that irregularity, the procedure could have resulted in a different outcome. Whilst the party which relies on such an irregularity cannot be required to show that, but for it, the regulation concerned would have had a content more favourable to its interests, that party must nevertheless demonstrate by concrete proof that such a possibility cannot be totally ruled out. (see paras 69, 79, 90, 91, 93, 94)