61981CJ0310_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 310/81
ENTE ITALIANO DI SERVIZIO SOCIALE ( EISS ), IN THE PERSON OF ITS COMMISSARIO GOVERNATIVO, FRANCESCO LATTARI, REPRESENTED AND ASSISTED BY NICOLA CATALANO OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34 B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ARMANDO TOLEDANO LAREDO, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT THE COMMISSION OF THE EUROPEAN COMMUNITIES HAS FAILED TO ACT AND FOR AN ORDER THAT IT PAY A PECUNIARY PENALTY FOR HAVING FAILED TO PAY THE TOTAL SUM OF LIT 371 649 981, TOGETHER WITH INTEREST TO BE DETERMINED,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 DECEMBER 1981 PURSUANT TO ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY THE ENTE ITALIANO DI SERVIZIO SOCIALE ( ITALIAN SOCIAL SERVICES BOARD, HEREINAFTER REFERRED TO AS ' ' THE BOARD ' ' ) CLAIMED COMPENSATION FOR THE DAMAGE CAUSED BY THE COMMISSION ' S NOT HAVING PLACED AT ITS DISPOSAL, UNDER ARTICLE 2 ( 2 ) OF THE COMMISSION ' S DECISION OF 27 DECEMBER 1973, THE SUM OF LIT 371 649 981 WHICH IT SHOULD HAVE RECEIVED AS A FINAL BALANCE BY APRIL 1978, AND FOR THE DAMAGE ARISING FROM THE FACT THAT, AS A RESULT OF NOT HAVING HAD THE USE OF THAT SUM WHEN IT WAS REQUIRED, THE BOARD WAS MADE TO INCUR A LARGE OVERDRAFT AT THE BANK AND SUFFERED CONSEQUENTIAL DAMAGE IN THE FORM OF CONSIDERABLE CHARGES FOR INTEREST .
2 IN ITS APPLICATION, THE BOARD STATES THAT THE APPLICATION, WHICH IS TO BE SERVED ON THE COMMISSION, MAY BE REGARDED AS FORMAL NOTICE UNDER THE SECOND PARAGRAPH OF ARTICLE 175 OF THE EEC TREATY . IN ITS REPLY THE APPLICANT HAS WITHDRAWN THAT SUBMISSION .
3 IN ITS REPLY, THE APPLICANT HAS SPECIFIED THAT ITS CLAIM FOR COMPENSATION IS BASED EXCLUSIVELY ON THE NON-CONTRACTUAL LIABILITY OF THE COMMUNITY UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .
4 THE APPLICATION STATES THAT IN 1972 THE DIRECTORATE GENERAL FOR THE VOCATIONAL GUIDANCE AND TRAINING OF WORKERS AT THE ITALIAN MINISTRY OF LABOUR AND NATIONAL INSURANCE INSTRUCTED THE BOARD TO STUDY, DRAFT AND SUBMIT A SPECIAL PROGRAMME FOR THE TRAINING AND REQUALIFICATION OF ITALIAN WORKERS WHO WERE ' ' UNEMPLOYED OR IN PRECARIOUS CONDITIONS OF EMPLOYMENT ' '
FOR WORK IN THE SOCIAL SERVICES .
5 IN A LETTER DATED 10 JULY 1973, THE DIRECTORATE GENERAL ANNOUNCED THAT IT HAD SENT THE APPLICANT ' S PROGRAMME TO THE COMMISSION SO THAT IT MIGHT TAKE THE DECISIONS FALLING WITHIN ITS COMPETENCE TO SECURE THE INTERVENTION OF THE EUROPEAN SOCIAL FUND .
6 THE APPLICANT STATES FURTHER THAT IT WAS REQUESTED TO EXECUTE THE TRAINING PROJECT WHICH, FOR THE INITIAL PHASE OF DEVELOPMENT IN 1973, ENTAILED INTENSIVE COURSES TO REQUALIFY SOCIAL WORKERS ATTACHED TO THE BOARD WHOSE PRECARIOUS STATE OF EMPLOYMENT MADE THEM ELIGIBLE FOR ASSISTANCE BY THE EUROPEAN SOCIAL FUND IN ACCORDANCE WITH THE COUNCIL DECISION OF 1 FEBRUARY 1971 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( I ), P . 52 ).
7 IN A DECISION OF 27 DECEMBER 1973 ADDRESSED TO THE ITALIAN REPUBLIC, THE COMMISSION ALLOWED THE REQUEST FOR ASSISTANCE SUBMITTED BY THE ITALIAN REPUBLIC, ' ' TO CARRY OUT A TRAINING PROJECT IN THE PERIOD FROM 1 JANUARY 1973 TO 31 DECEMBER 1974 FOR SOME 1 150 UNEMPLOYED YOUNG PERSONS FROM THE MEZZOGIORNO TO BE RE-EMPLOYED AS SOCIAL WORKERS OR ASSISTANTS IN THE MEZZOGIORNO OR IN AREAS WITH A HIGH PROPORTION OF IMMIGRANT WORKERS FROM THE MEZZOGIORNO ' ' . THE DECISION PUT AT THE DISPOSAL OF THE BOARD LIT 1 726 207 592 DESIGNATED AS ASSISTANCE BY THE EUROPEAN SOCIAL FUND IN ORDER TO CARRY OUT THE OPERATIONS REFERRED TO IN THE DECISION . THAT SUM WAS ALLOCATED AS TO LIT 274 721 810 FOR 1973 AND AS TO LIT 1 451 485 782 FOR 1974 .
8 IT APPEARS FROM THE PREAMBLE TO THAT DECISION THAT ON 10 JULY 1973, THE ITALIAN REPUBLIC HAD SUBMITTED A REQUEST TO THE EUROPEAN SOCIAL FUND ON BEHALF OF THE BOARD TO SUPPORT, IN THE PERIOD FROM 1 JANUARY 1973 TO 31 DECEMBER 1974, A PROJECT INTENDED TO PROMOTE THE TRAINING OF SOME 1 150 UNEMPLOYED YOUNG PERSONS FROM THE MEZZOGIORNO AS SOCIAL WORKERS OR ASSISTANTS TO BE RE-EMPLOYED IN THAT CAPACITY IN THE MEZZOGIORNO ITSELF OR IN AREAS WITH A HIGH PROPORTION OF IMMIGRANT WORKERS FROM THE MEZZOGIORNO . THE COMMISSION FOUND THAT THAT REQUEST WAS IN ACCORDANCE WITH THE PROVISIONS GOVERNING THE OPERATION OF THE EUROPEAN SOCIAL FUND, SUBJECT TO CHECKS BEING CARRIED OUT IN THE COURSE OF THE PROJECT ' S EXECUTION ON ITS COMPLIANCE WITH THE RULES IN FORCE .
9 IT APPEARS FROM THE FILE THAT AFTER A CHECK WAS CARRIED OUT IN JUNE AND JULY 1974 BY OFFICIALS OF THE COMMISSION AND THE ITALIAN MINISTRY OF LABOUR, THE COMMISSION TOOK THE VIEW THAT THE CRITERIA WHICH IT HAD LAID DOWN IN ITS DECISION WERE NOT SATISFIED BY THE BOARD ' S ACTIVITIES IN 1973 . THE COMMISSION ACCORDINGLY REFUSED THE ASSISTANCE WHICH HAD BEEN ALLOCATED BY THE EUROPEAN SOCIAL FUND FOR 1973 .
10 BY DECISION DATED 30 DECEMBER 1974, THE COMMISSION AGREED TO THE REQUEST OF THE ITALIAN REPUBLIC THAT SINCE THERE HAD BEEN DELAYS IN PUTTING THE PROGRAMME INTO EFFECT, THE APPORTIONMENT OF THE AMOUNT OF ASSISTANCE FOR THIS PROJECT, AMONG OTHERS, AS BETWEEN FINANCIAL YEARS, SHOULD BE MODIFIED, AND IT ALLOCATED THE ASSISTANCE TO BE GRANTED AS FOLLOWS : LIT 609 798 130 FOR 1974 AND LIT 841 687 652 FOR 1975 .
11 IT SHOULD BE EMPHASIZED THAT THAT DECISION DID NOT ALLOW FOR ANY ASSISTANCE FOR 1973, AND THAT THE TOTAL ASSISTANCE APPROVED BY THAT DECISION WAS LESS THAN THAT PROVIDED FOR IN THE DECISION OF 27 DECEMBER 1973 BY LIT 274 721 810 . THE DIFFERENCE IS TO BE EXPLAINED BY THE FACT THAT THAT SUM WAS THE AMOUNT STATED BY THE APPLICANT AS ITS EXPENDITURE FOR 1973 . IT MAY BE OBSERVED IN THIS CONNECTION THAT IN ITS APPLICATION, THE BOARD ADMITS TO HAVING ACCEPTED THAT ONLY LIT 134 912 640 OUT OF A TOTAL OF LIT 274 721 810 WERE ELIGIBLE FOR ASSISTANCE FOR 1973 .
12 IN RESPONSE TO THE ITALIAN REPUBLIC ' S REQUEST FOR A MODIFICATION OF THE APPORTIONMENT OF THE AMOUNT OF ASSISTANCE AS BETWEEN FINANCIAL YEARS, THE COMMISSION BY DECISION OF 18 MAY 1976 AGAIN REALLOCATED THE ASSISTANCE
AGREED SO AS TO PROVIDE LIT 385 875 145 FOR 1975 AND LIT 455 812 507 FOR 1976 .
13 FOR THE YEARS 1974, 1975 AND 1976, A SUM AMOUNTING TO LIT 345 763 716 WAS REFUSED ON THE GROUND THAT THE ACTIVITIES PERFORMED DID NOT COMPLY WITH COMMUNITY RULES AND IN PARTICULAR WITH THE TERMS OF THE COMMISSION ' S DECISION . IN ADDITION A SUM OF LIT 65 149 763 WAS NOT CLAIMED . THE FINAL BALANCE THEREFORE REPRESENTS A TOTAL SUM OF LIT 1 040 572 303 .
14 IT SHOULD BE RECALLED THAT THE FINANCING PROCEDURE OF THE EUROPEAN SOCIAL FUND IS AS FOLLOWS . REQUESTS FOR ASSISTANCE ARE SUBMITTED BY MEMBER STATES TO THE COMMISSION . IF THE COMMISSION CONSIDERS THAT THE REQUEST FALLS WITHIN THE OBJECTIVES OF THE EUROPEAN SOCIAL FUND AND THAT IT SHOULD BE GIVEN PRIORITY, THE COMMISSION ADDRESSES A DECISION TO THE MEMBER STATE CONCERNED AFTER RECEIVING THE OPINION OF THE EUROPEAN SOCIAL FUND COMMITTEE . THAT DECISION PLACES THE APPLICANT MEMBER STATE UNDER A NUMBER OF OBLIGATIONS . IN PARTICULAR THAT STATE UNDERTAKES TO ASSUME A FINANCIAL BURDEN EQUAL TO THE AMOUNT REQUESTED FROM THE COMMISSION AS A REIMBURSEMENT FOR THE COST OF THE PROJECT, TO OBTAIN ALL DOCUMENTS REGARDING THE PROJECT AND TO VERIFY THEIR ACCURACY, TO REQUEST PAYMENTS ON ACCOUNT FROM THE EUROPEAN SOCIAL FUND AS THE OPERATION PROGRESSES AND THE PAYMENT OF THE FINAL BALANCE, AND TO FACILITATE THE CHECKS MADE BY THE COMMISSION TO ESTABLISH WHETHER THE ACTIVITIES COMPLETED OR IN COURSE OF COMPLETION COMPLY WITH THE RELEVANT PROVISIONS .
15 IT FOLLOWS THAT THIS PROCEDURE CREATES A FINANCIAL RELATIONSHIP BETWEEN THE COMMISSION AND THE MEMBER STATE ON THE ONE HAND AND BETWEEN THAT MEMBER STATE AND THE INSTITUTION WHICH IS THE RECIPIENT OF THE FINANCIAL ASSISTANCE ON THE OTHER .
16 IN ORDER THAT, IN SUCH A SITUATION, LIABILITY ON THE PART OF THE COMMUNITY TOWARDS THE RECIPIENT INSTITUTION MAY ARISE, IT IS NOT ENOUGH TO STATE, AS DOES THE APPLICANT, THAT IT IS ENTITLED TO A ' ' BALANCE ' '
FROM THE COMMISSION ON THE GROUND THAT ' ' ACTS ' '
OR ' ' CONDUCT ' '
ON THE PART OF THAT INSTITUTION - NONE OF WHICH IS SPECIFIED IN THE APPLICATION OR THE REPLY - ARE INVALID OR ILLEGAL . FOR THIS PURPOSE IT IS NOT SUFFICIENT MERELY TO MENTION THAT THE RESULT OF CHECKS CARRIED OUT BY COMMISSION OFFICIALS DID NOT SHOW AS MANY IRREGULARITIES AS
WERE REFERRED TO IN THE COMMISSION ' S DECISION . IT WAS, ON THE OTHER HAND, INCUMBENT ON THE APPLICANT TO ADDUCE EVIDENCE CAPABLE IN FACT AND IN LAW OF SUSTAINING A CAUSAL LINK BETWEEN THE DAMAGE ALLEGED BY IT AND SPECIFIC WRONGFUL ACTS WHICH MAY BE IMPUTED TO THE COMMUNITY .
17 IN DEFAULT OF SUCH DETAILS THE APPLICATION CANNOT BE GRANTED .
Decision on costs
COSTS
18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS ; AS THE APPLICANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS,
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE APPLICANT TO PAY THE COSTS .