62002TO0341_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case T-341/02,
Regione Siciliana,
represented by I. Braguglia, avvocato dello Stato, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities,
represented by E. de March and L. Flynn, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for annulment of Commission Decision D (2002) 810439 of 5 September 2002 closing the financial assistance from the European Regional Development Fund (ERDF) for the Messina-Palermo Motorway major project (ERDF No 93.05.03.001 – ARINCO No 93.IT.16.009),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Legal context
1. Article 158 EC provides that the Community is to develop and pursue its actions leading to the strengthening of its economic and social cohesion. In particular, it is to aim at reducing disparities between the levels of development of the various regions and the backwardness of the least-favoured regions in order to promote its overall harmonious development. In accordance with Article 159 EC, the Community is also to support the achievement of these objectives by the action it takes through the Structural Funds, in particular the European Regional Development Fund (ERDF).
2. In order to achieve those aims and to regulate the tasks of the Funds, the Council adopted Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 185, p. 9), as amended in particular by Council Regulation (EEC) No 2081/93 of 20 July 1993 (OJ 1993 L 193, p. 5; hereinafter ‘Regulation No 2052/88’, in force at the material time), and Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1), as amended in particular by Council Regulation (EEC) No 2082/93 of 20 July 1993 (OJ 1993 L 193, p. 20; hereinafter ‘Regulation No 4253/88’, then in force).
Regulation No 2052/88
3. Under the first subparagraph of Article 3(1) of Regulation No 2052/88, the ERDF is to have the essential task of promoting, in particular, the development and structural adjustment of the regions whose development is lagging behind (Objective 1). As provided in Annex I to that regulation, Sicily (Italy) is a region concerned by Objective 1.
4. The first subparagraph of Article 4(1) of Regulation No 2052/88 provides:
‘Community operations shall be such as to complement or contribute to corresponding national operations. They shall be established through close consultations between the Commission, the Member State concerned and the competent authorities and bodies ... designated by the Member State at national, regional, local or other level, with all parties acting as partners in pursuit of a common goal. These consultations shall hereinafter be referred to as the ‘partnership’. The partnership shall cover the preparation and financing, as well as the ex ante
appraisal, monitoring and ex post
evaluation of operations.’
5. The second subparagraph of Article 5(2) of Regulation No 2052/88 provides that, with the exception of those referred to in (e), the forms of assistance undertaken on the Commission’s initiative may be only those established by the Member State or the competent authorities designated by the Member State and submitted to the Commission by that Member State or any other body it may, should the need arise, designate to do so.
Regulation No 4253/88
6. Article 2 of Regulation No 4253/88 provides that coordination between the activities of the various Funds is to be carried out in particular through Community support frameworks (CSFs). CSFs are governed by Title III of that regulation (Articles 8 to 13). Under Article 8(1) of that regulation, the CSFs relating to Objective 1 are to be drawn up in agreement with the Member State concerned within the framework of the partnership and established by decision of the Commission.
7. As is stated in the sixth recital in the preamble to Regulation No 2082/93, ‘in application of the principle of subsidiarity, and without prejudice to the Commission’s powers, particularly its responsibility for the management of the Community’s financial resources, implementation of the forms of assistance contained in the [CSFs] should be primarily the responsibility of the Member States at the appropriate territorial level according to the specific needs of each Member State’.
8. Under Article 9(1) of Regulation No 4253/88 (‘[a]dditionality’), in order to achieve a genuine economic impact, Structural Funds’ appropriations may not replace public expenditure on structural or comparable expenditure undertaken by the Member State in the whole of the territory eligible under an objective.
9. Regulation No 4253/88 lays down in section IV (‘[a]ssistance from the Funds’) the rules for processing applications for assistance (Article 14), the conditions governing eligibility for financing (Article 15) and certain specific provisions (Article 16).
10. Under Article 16(2) of that regulation, the ERDF, like the other Structural Funds, may provide financial assistance towards expenditure in respect of major projects, that is to say, those the total cost of which taken into account in determining the amount of Community assistance is, as a general rule, greater than EUR 25 million for infrastructure investments or greater than EUR 15 million for productive investments.
11. Regulation No 4253/88 lays down in section VI (‘[f]inancial provisions’) the rules relating to commitments of funds (Article 20), payments of financial assistance (Article 21), control of operations financed (Article 23) and reduction, suspension and cancellation of assistance (Article 24).
12. Under Article 21 of Regulation No 4253/88:
‘1. Payments of financial assistance shall be made in accordance with the corresponding budgetary commitments to the national, regional or local authority or body designated for the purpose in the application submitted through the Member State concerned as a general rule within two months from receipt of an acceptable application. They may take the form either of advances or of final payments in respect of expenditure actually incurred. For measures to be carried out over a period of two or more years payments shall relate to the annual instalments of commitments …
3. A second advance such that the sum of the two advances does not exceed 80% of the commitment shall be made after the responsible body has certified that at least half of the first advance has been used up and that the measure is progressing at a satisfactory rate and in accordance with the objectives laid down.
The payments shall be made to the final beneficiaries without any deduction or retention which could reduce the amount of financial assistance to which they are entitled.
4. Payment of the balance in respect of each commitment shall be conditional on:
– submission to the Commission by the designated authority or body referred to in paragraph 1 of a request for payment within six months of the end of the year concerned or of completion in practice of the operation concerned,
– submission to the Commission of the relevant reports referred to in Article 25(4),
– transmission by the Member State to the Commission of a certificate confirming the information contained in the request for payment and the reports.
5. Member States shall designate the authorities empowered to issue the certificates referred to in paragraphs 3 and 4 and shall ensure that the beneficiaries receive the advances and payments as soon as possible, and as a general rule within three months of receipt of the appropriations by the Member State and provided that the beneficiaries’ applications fulfil the conditions necessary for payment to be made.’
13. Article 23(1) of Regulation No 4253/88 provides:
‘In order to guarantee completion of operations carried out by public or private promoters, Member States shall take the necessary measures in implementing the operations:
– to verify on a regular basis that operations financed by the Community have been properly carried out,
– to prevent and to take action against irregularities,
– to recover any amounts lost as a result of an irregularity or negligence. Except where the Member State and/or the intermediary and/or the promoter provide proof that they were not responsible for the irregularity or negligence, the Member States shall be liable in the alternative for reimbursement of any sums unduly paid …
…’
14. Under Article 24 of Regulation No 4253/88:
‘1. If an operation or measure appears to justify neither part nor the whole of the assistance allocated, the Commission shall conduct a suitable examination of the case in the framework of the partnership, in particular requesting that the Member State or authorities designated by it to implement the operation submit their comments within a specified period of time.
2. Following this examination, the Commission may reduce or suspend assistance in respect of the operation or a measure concerned if the examination reveals an irregularity or a significant change affecting the nature or conditions for the implementation of the operation or measure for which the Commission’s approval has not been sought.
3. Any sum received unduly and to be recovered shall be repaid to the Commission …’
15. Finally, Regulation No 4253/88 lays down, in section VII, the rules relating to monitoring and evaluation of assistance granted by the Funds. To that end, Article 25(3) provides for monitoring committees to be set up within the framework of the partnership, by agreement between the Member State concerned and the Commission.
Facts
16. By decision of 22 December 1993 addressed to the Italian Republic, the Commission granted, for the 1994-1999 programming period, financial assistance from the ERDF amounting to 50% of the eligible costs relating to the construction of the motorway between Palermo and Messina in Sicily, which constitutes a major project within the meaning of Article 16(2) of Regulation No 4253/88. The necessary works were divided into ten lots.
17. Under the first paragraph of Article 3 of that decision, Community assistance could be granted in order to meet the cost of the operations provided for by the project which had been the subject in the Member State of legally binding acts and of a corresponding specific financial commitment by 30 June 1994. The deadline set for the implementation of expenditure relating to those operations was 30 June 1996. Under the second paragraph of that provision, the Commission could postpone those deadlines upon a request submitted by the Member State within the period laid down. In the absence of a postponement of the date authorised by the Commission, any expenditure undertaken after the expiry of the final time‑limit set for its implementation was no longer eligible for the ERDF assistance.
18. As provided in the Annex to the decision of 22 December 1993, the applicant was designated as the authority responsible for the execution of the project.
19. By decision of 28 July 1995 addressed to the Italian Republic, the Commission, upon request submitted by the Italian Government, postponed the deadline for the national financial commitments until 31 December 1995 and, subject to the adoption of a further Commission decision by 31 December 1995, the deadline for the national payments relating to the project until 31 December 1997.
20. By decision of 22 December 1995 addressed to the Italian Republic, the Commission amended the description of the project contained in the decision of 22 December 1993.
21. On 9 July 1997 the CSF monitoring committee for the regions concerned by Objective 1 in Italy (hereinafter ‘the monitoring committee’) noted that it would be difficult to complete the works relating to the project by 31 December 1997. On that occasion, the motorway consortium and the applicant undertook to cover, out of their own resources, part each of the sum corresponding to the ERDF contribution relating to the works required to complete the lots not yet finished.
22. By letter of 5 August 1997, the applicant officially undertook to finance the completion of the works relating to certain lots.
23. By letter of 26 September 1997, the applicant asked the Commission for an extension of the times allowed for payment for several lots.
24. By letter of 30 October 1997 addressed to the applicant, the Commission, after pointing out that an extension had already been granted in respect of that project until 31 December 1997, stated that all the necessary steps were to be taken as a matter of urgency to complete the works by that date at the latest.
25. By letter of 17 June 1998, the applicant submitted to the Italian Ministry of the Treasury and to the Commission the final certification of expenditure undertaken up to 31 December 1997, the request for payment by the ERDF and the final implementation report.
26. By letter of 23 July 1998, the Commission returned that report to the Ministry of the Treasury on the ground that it did not contain all the information necessary to close the project. The Commission asked the Italian authorities to submit a new final report containing, in respect of each of the ten lots financed under that project, a statement on the technical and financial progress achieved by the last date for payments (that is, 31 December 1997) and appropriate proof of the reasons for the delay in the execution of each of the ten lots.
27. By letter of 10 February 1999, the Commission informed the Ministry of the Treasury that the final implementation report showed that the applicant’s commitment to finance the execution of the project works by 31 December 1997 at the latest had apparently not been complied with. The Commission noted that, of the ten lots provided for, only two had been completed by 31 December 1997, with a delay of two years. In those circumstances, the Commission explained that any settlement of the balance of the assistance would have to be based on the expenditure actually incurred in respect of the two lots completed, provided that the execution was essentially in compliance with the original project.
28. By letter of 21 December 2001, the Commission sent to the Italian Republic, through its Permanent Representation to the European Union, a proposal for closure of the project on account of the delays encountered in the execution of the works. That proposal for closure was drawn up on the basis of expenditure implemented by 31 December 1997 in respect of works completed by 31 December 1999.
29. By letter of 14 February 2002, the applicant submitted its written comments on that proposal for closure.
30. By letter of 5 September 2002 (hereinafter ‘the contested decision’), the Commission sent to the Italian Republic, through its Permanent Representation to the European Union, its decision to close definitively the assistance relating to the project, on the basis of expenditure implemented by 31 December 1997 in respect of works completed by 5 September 2002, thus cancelling and replacing the closure dates notified in the letter of 21 December 2001.
31. At the end of that decision, the Commission set out, firstly, the amount of the unspent balance to be withdrawn, namely, the difference between the amount of ERDF financial assistance originally committed for the project and the amount corresponding to the total payments made by the ERDF, and, secondly, the amount to be recovered, namely, the difference between the latter amount and the amount corresponding to the portion of the expenditure eligible to be charged to the ERDF on the closure date. The Commission also stated that the Italian Republic should inform the final recipient of that decision by registered letter.
Procedure and forms of order sought by the parties
32. It was in that context that the applicant brought the present action by application lodged at the Registry of the Court of First Instance on 14 November 2002.
33. In support of its action, the applicant raises four pleas for annulment. The first alleges lack of competence on the part of the body which signed the contested decision. The second alleges infringement and/or misapplication of Articles 24 and 25 of Regulation No 4253/88. The third alleges inconsistency in the conduct of the Commission and breach of the principle of the protection of legitimate expectations. The fourth alleges failure to state reasons and failure to investigate.
34. The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
35. The Commission contends that the Court should:
– declare the application inadmissible;
– in the alternative, dismiss the application on the substance;
– in any event, order the applicant to pay the costs.
Admissibility
Arguments of the parties
36. The Commission does not dispute that the contested decision is of individual concern to the applicant. However, it takes the view that it is not of direct concern to the applicant and that, consequently, the present action is inadmissible on that ground alone.
37. In essence, the Commission maintains that the Court has already held, in its order in Case T‑244/00 Coillte Teoranta
v Commission [2001] ECR II‑1275, that the decision to exclude certain expenditure from financing by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) did not have any direct effect on the legal situation of the beneficiary of the Community aid.
38. In the Commission’s view, the grounds of that order apply in the same way to the management of the ERDF and the other structural funds during the 1994-1999 programming period. That transposition is possible because the management of those funds is based on the principle of the separation of the legal relationships existing, on the one hand, between the Commission and the Member States and, on the other hand, between the Member States and the beneficiaries.
39. In this case, the Commission takes the view that the contested decision leaves the recovery of sums unduly paid from the final beneficiary to the discretion of the Italian Republic. Any restitution by the applicant of the aid paid to it in this case would not be as a result of the contested decision as such, but of any action brought for that purpose by the competent authorities under their national legislation.
40. Consequently, correct implementation of the contested decision requires only that the Italian Republic reimburse to the Commission the sums unduly paid which are indicated therein. However, if that were the case, it would follow that the contested decision is not of direct concern to the applicant.
41. The Commission therefore claims, primarily, that the action should be declared inadmissible.
42. The applicant argues that the provisions of the EC Treaty regarding the rights of action of individuals cannot be interpreted restrictively (judgment in Case 25/62 Plaumann v Commission
[1963] ECR 95). Standing to bring an action must therefore, in the applicant’s view, be conferred on all persons who, possessing the legal personality required by the provisions of that Treaty, are individually and directly concerned by the contested act.
43. The applicant takes the view that that solution must also apply where the applicant is a public body which fulfils certain conditions (judgment in Case T‑288/97 Regione autonoma Friuli‑Venezia Giulia v Commission [1999] ECR II‑1871).
44. In the applicant’s view, the contested act in this case, although not formally addressed to it, is of direct and individual concern to it since it can be identified as the person to whom the act is in practice addressed and there is a manifest causal link between its individual situation and the act adopted. Far from having normative or general scope, the act in question was adopted specifically taking into account the applicant’s situation, thus conferring on it standing to bring an action (judgments in Joined Cases 41/70 to 44/70 International Fruit Company and Others v Commission [1971] ECR 411; Case 100/74 CAM
v Commission [1975] ECR 1393, and Case C‑244/88 Usines coopératives de déshydratation du Vexin and Others
v Commission [1989] ECR 3811).
45. As regards the further condition necessary for bringing an action effectively, namely, that no implementing measure enabling the act at issue to be applied must be adopted, the applicant takes the view that it can also reasonably be considered to have been fulfilled in the present case. The contested decision directly affects the applicant’s legal position without leaving to its addressee, the Italian Republic, any discretion as to its implementation, which consists simply in recovering sums previously paid by the ERDF, without any further legislative activity being necessary for that purpose. The applicant considers that, according to settled Community case‑law, such circumstances are sufficient to justify the standing of individuals to bring actions (judgment in Case C‑386/96 P Dreyfus v Commission [1998] ECR I‑2309, paragraph 43, and the case‑law cited).
46. Moreover, the applicant points out that, contrary to what the Commission maintains, direct legal relations existed between itself and the Commission with respect to the project at issue. In that regard, the applicant refers, in particular, to the letter of 30 October 1997 by which the Commission informed it directly of its position with regard to the grant of the extension which it had requested for the completion of the works.
Findings of the Court
47. Under Article 113 of its Rules of Procedure, the Court of First Instance may, at any time, even of its own motion, consider whether there exists any absolute bar to proceeding with an action and is to give its decision to that effect in accordance with Article 114(3) and (4) of those Rules.
48. Under Article 114(3) of the Rules of Procedure of the Court of First Instance, the remainder of the proceedings are to be oral unless the Court decides otherwise.
49. In this case, the Court considers that it has been provided with sufficient information by the documents in the file and decides that there is no need to hear oral explanations from the parties.
50. It must be recalled that, under the fourth paragraph of Article 230 EC, any natural or legal person may, under the conditions referred to in the first and second paragraphs of that provision, institute proceedings against a decision addressed to that person 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 the former.
51. In this case, it is common ground that the contested decision was notified by the Commission to the Italian Republic.
52. In those circumstances, it must be ascertained whether the applicant, which cannot be regarded as the person to whom the contested decision is addressed for the purposes of the fourth paragraph of Article 230 EC, is entitled to bring an action for annulment against that decision on the ground that it is directly and individually concerned by it.
53. With regard to direct concern, it is settled case‑law that, for that condition to apply, the Community measure in question must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules alone without the application of other intermediate rules (judgment in Dreyfus
v Commission, cited in paragraph 45 above, paragraph 43; judgments in Case T‑54/96 Oleifici Italiani and Fratelli Rubino
v Commission [1998] ECR II‑3377, paragraph 56; Case T‑69/99 DSTV
v Commission [2000] ECR II‑4039, paragraph 24; Case T‑9/98 Mitteldeutsche Erdöl‑Raffinerie
v Commission [2001] ECR II‑3367, paragraph 47; order in Case T‑223/01 Japan Tobacco and JT International v Parliament and Council [2002] ECR II-3259, paragraph 45). The same applies where the possibility for addressees not to give effect to the Community measure is purely theoretical and their intention to act in conformity with it is not in doubt (judgments in Case 11/82 Piraiki‑Patraiki and Others v Commission [1985] ECR 207, paragraphs 8 to 10, and Dreyfus v Commission, cited in paragraph 45 above, paragraph 44).
54. In the present case, since the contested decision embodied the Commission’s refusal to extend the time-limit for the submission of applications for final payment and definitively closed the disputed assistance on the basis of the expenditure incurred by 31 December 1997 in respect of works completed by 5 September 2002, it excluded any ERDF payment by way of the disputed assistance in respect of expenditure which was either implemented after 31 December 1997 or related to works not completed by 5 September 2002, such expenditure being thereby rendered ineligible for that assistance.
55. It follows that the contested decision thus had the effect, on the one hand, of disengaging the ERDF to the extent of the amounts of assistance not yet granted in respect of expenditure which had become ineligible and, on the other, of allowing the Commission to recover the amounts already paid by the ERDF in respect of that expenditure. The contested decision thus had the effect of ‘cutting off’ the ERDF financial assistance (order in Case T‑105/01 SLIM Sicilia
v Commission [2002] ECR II‑2697, paragraph 47).
56. With regard to the determination of the effects of that decision on the applicant, it must be pointed out that, under the original decision granting the disputed assistance, dated 22 December 1993, the applicant was the authority responsible for carrying out the project. The file shows that, in accordance with Article 21(1) of Regulation No 4253/88, the applicant received, on that basis, payment of the sums corresponding to the disputed assistance in order to allocate them to the final beneficiaries. The contested decision shows that, in accordance with Article 21(3) of Regulation No 4253/88, these payments represented 80% of the total assistance at issue.
57. In that situation, the contested decision could be regarded as having directly affected the applicant’s legal situation only if, by virtue of that decision, and without the Italian Republic’s having had any discretion in that regard, that applicant had, on the one hand, been deprived of payment of the withdrawn amounts corresponding to sums not yet received from the ERDF by way of the disputed assistance and relating to expenditure which had become ineligible and was, on the other hand, obliged to refund the amounts unduly paid corresponding to sums already received by way of that assistance and intended for the implementation of expenditure which had become ineligible.
58. However, the Court has already held that no such consequences derive either from a Commission decision terminating ERDF financial assistance or from any other provision of Community law intended to govern the effect of such a decision (order in SLIM Sicilia v Commission, cited in paragraph 55 above, paragraph 51).
59. In that regard, it must, as a preliminary point, be recalled that, according to the institutional system of the Community and the rules which govern the relations between the Community and the Member States, it is for the Member States, in the absence of any contrary provision of Community law, to ensure that Community regulations are implemented within their territory (judgments in Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others
v Germany
[1983] ECR 2633, Joined Cases 89/86 and 91/86 Étoile commerciale and CNTA
v Commission [1987] ECR 3005, paragraph 11, order in Coillte Teoranta v Commission, cited in paragraph 37 above, paragraph 42). As regards more particularly financing measures adopted within the framework of the ERDF, it is incumbent upon the Member States, under Article 23(1) of Regulation No 4253/88, to take the measures necessary to recover sums lost as a result of abuse or negligence.
60. As the Court of Justice held in Case C‑271/01 COPPI
[2004] ECR I‑0000, paragraphs 39 and 40, the latter provision enshrines the principle of subsidiarity set out in the sixth recital in the preamble to Regulation No 2082/93, according to which, in relation to the use of funds received from the ERDF, and without prejudice to the Commission’s powers, particularly its responsibility for the management of the Community’s financial resources, implementation of the forms of assistance should be primarily the responsibility of the Member States at the appropriate territorial level according to the specific needs of each Member State (see also, to that effect, order in Joined Cases T‑66/02 and T‑139/02 Institouto N. Avgerinopoulou and Others v Commission [2004] ECR II‑0000, paragraph 64).
61. Within that system, it is therefore for the Member States, according to the case‑law of the Court of Justice, to implement the Community regulations and to take the necessary individual decisions regarding the traders concerned. In doing so, the Member States act in accordance with the rules and procedures laid down in national legislation, subject to the limits imposed by Community law (judgment in Étoile commerciale and CNTA v Commission, cited in paragraph 59 above, paragraph 12, and order in Coillte Teoranta
v Commission, cited in paragraph 37 above, paragraph 42).
62. In that connection, it must be pointed out that a territorial public authority, such as the applicant, which has been entrusted with the management, at regional level, of funds received from the ERDF cannot be placed on the same footing as the Member State itself (order in Case C‑95/97 Région wallonne v Commission
[1997] ECR I‑1787, paragraph 6). It is moreover apparent from the applicable legislation, in particular the first subparagraph of Article 4(1) of Regulation No 2052/88, that it makes a clear distinction between, on the one hand, the Member States and, on the other hand, the competent bodies or authorities designated by the latter at national, regional or local level.
63. That is the context in which the assessment of whether the applicant is directly concerned must be made.
64. With regard, in the first place, to the ERDF’s disengagement in respect of the unpaid sums, it must be noted that the contested decision merely informed the Italian Republic that, as a result of the closure of the disputed assistance, those sums would not be paid. However, it is clear from Article 21(5) of Regulation No 4253/88 that, except for certain forms of assistance which are not at issue in this case, in particular that referred to in Article 5(2), first subparagraph, (e) of Regulation No 2052/88, Community a ppropriations granted by way of ERDF financial assistance are to be paid by the Commission to the Member State concerned (judgment in COPPI, cited in paragraph 60 above, paragraphs 37, 38 and 41; Opinion of Advocate General Alber in that case, ECR I‑0000, point 61).
65. It is clear that in this case there is nothing to prevent the Italian Republic from deciding to defray out of its own funds the withdrawn portion of the Community financing so as to finance the completion of the works relating to the project in question. In that regard, it must, in particular, be pointed out that, under Article 4(1) of Regulation No 2052/88, ERDF assistance is to be such as to complement or contribute to corresponding national operations and that Article 9 of Regulation No 4253/88 further provides that, in accordance with the principle of additionality, Community assistance may not replace public expenditure undertaken by the Member State.
66. With regard, in the second place, to restitution of sums unduly paid, it must be pointed out that, in the contested decision, the Commission did no more than inform the Italian Republic that sums covered by a Community payment and corresponding to expenditure which had become ineligible had to be recovered by the ERDF. In contrast to the practice usually followed by the Commission in connection with unlawful aid declared incompatible with the common market, the contested decision does not include any provision requiring the Italian Republic to recover the sums unduly paid from their beneficiaries (see, to that effect, order in Coillte Teoranta v Commission, cited in paragraph 37 above, paragraph 45).
67. In that connection, the obligation imposed on the Italian Republic by the contested decision to inform the final beneficiary of that decision clearly cannot be regarded as an obligation to recover the amounts unduly paid from the latter. In any event, since the applicant is not the final beneficiary of the financial assistance at issue, that statement cannot in any circumstances prove that the contested decision directly affects its legal situation for the purposes of the fourth paragraph of Article 230 EC, which the applicant does not maintain, moreover.
68. The proper implementation of the contested decision therefore requires only, as the Commission rightly maintains in its written submissions, that the Italian Republic refund to the ERDF the sums unduly paid which are indicated therein (see, to that effect, the order in Coillte Teoranta v Commission, cited in paragraph 37 above, paragraph 45, and the Opinion of Advocate General Alber in COPPI, cited in paragraph 64 above, points 58 to 63).
69. In that regard, it must also be pointed out that the Commission may require the restitution of assistance only from the body to which it granted it (Opinion of Advocate General Alber in COPPI, cited in paragraph 64 above, point 58). As was stated in paragraph 64 above, Community appropriations granted by way of ERDF financial assistance are, in circumstances such as those of this case, paid by the Commission to the Member State concerned (judgment in COPPI, cited in paragraph 60 above, paragraph 41).
70. In those circumstances, reimbursement of the Community funds paid to the applicant would be the direct consequence, not of the contested decision, but of the action which would be taken for that purpose by the Italian Republic on the basis of national legislation in order to fulfil obligations under the Community rules on the subject ( Deutsche Milchkontor and Others, cited in paragraph 59 above, paragraphs 19 and 20; Opinion of Advocate General Cruz Vilaça in Étoile Commerciale and CNTA
v Commission, cited in paragraph 59 above, points 48 to 52; order in Coillte Teoranta
v Commission, cited in paragraph 37 above, paragraph 47).
71. As regards ERDF financial assistance, the Court has already held that there was no evidence to indicate that the Member State has no discretion or indeed no decision-making powers as regards such reimbursement (order in SLIM Sicilia
v Commission, cited in paragraph 55 above, paragraph 52).
72. In accordance with the principle of subsidiarity set forth in the sixth recital in the preamble to Regulation No 2082/93, where a Member State takes measures pursuant to Article 23(1) of Regulation No 4253/88, it acts under its own powers (see, to that effect, the judgment in COPPI, cited in paragraph 60 above, paragraphs 39 to 45 and 48, and the Opinion of Advocate General Alber in that case, cited in paragraph 64 above, point 72).
73. It cannot therefore be excluded that particular circumstances may lead the Italian Republic to decide not to claim reimbursement of the disputed assistance and itself to bear the burden of reimbursing to the ERDF the amounts which it wrongly considered itself authorised to pay (see, to that effect, the judgment in Case 11/76 Netherlands
v Commission
[1979] ECR 245, paragraph 8, the Opinion of Advocate General Cruz Vilaça in Étoile Commerciale and CNTA v Commission, cited in paragraph 59 above, point 54, and the order in Coillte Teoranta
v Commission, cited in paragraph 37 above, paragraph 48).
74. In that connection, it must first be noted that none of the decisions adopted in this case by the Commission in relation to the Italian Republic, whether it be the original decision of 22 December 1993 or the subsequent decisions of 28 July and 22 December 1995, contains any provision obliging the Italian Republic to recover the amounts unduly paid from the applicant or the final beneficiaries.
75. Secondly, as has already been stated in paragraph 65 above, since ERDF financial assistance is to be such as to complement or contribute to corresponding national operations, it cannot be excluded that the Italian Republic may finance the completion of the project at issue out of its own funds.
76. In that connection, it must be observed that the file does not show that, in its relations with the applicant, the Italian Republic expressed its intention to pass on to that applicant or the final beneficiaries the financial consequences of any Commission decision relating to the reduction of the assistance at issue. In particular, the applicant has adduced no evidence that the financing of the project to the amount of the Community assistance at issue is subject to the condition that that assistance is, in the final analysis, charged to the ERDF, a circumstance which renders all the more indirect the impact of the contested decision on the possible recovery of that assistance (order in Coillte Teoranta v Commission, cited in paragraph 37 above, paragraph 51). In any event, even if that had been the case, it must be pointed out that both the Court of Justice (judgment in Étoile commerciale and CNTA v Commission, cited in paragraph 59 above, paragraph 13) and the Court of First Instance (order in SLIM Sicilia v Commission, cited in paragraph 55 above, paragraph 51) have already held that such a circumstance is insufficient to prove the direct concern required by the fourth paragraph of Article 230 EC since, in such a case, recovery is not the consequence of the contested Community decision, but results from a domestic measure taken independently by the competent national authorities.
77. Finally, it must be stated that, even if the Italian Republic were to decide to recover the sums unduly paid, it is not clear that it would have no discretion as to the entity from which that recovery should take place. In particular, it is by no means established that the Italian Republic would necessarily recover the sums unduly paid from the applicant and not from the final beneficiaries.
78. It is evident from all the foregoing that, following the adoption of the contested decision, it is for the Italian Republic to assess whether, in accordance with the provisions of its national law and under the supervision of the national courts, reimbursement of the sums unduly paid should be requested, whether from the applicant or from the final beneficiaries, and to adopt the necessary individual national measures for that purpose.
79. It must further be stated that, although the applicant has maintained in its written submissions that the Italian Republic had no discretion to recover the sums unduly paid, it has adduced no evidence to support that assertion. Nor, moreover, has the applicant maintained that, even if the Italian Republic has a discretion, it is purely theoretical, having regard in particular to certain specific provisions of national law concerning, for example, the division of powers between the State and the regional authorities. In that connection, it must be observed that if, where the Commission adopts protective measures at the request of a Member State or declares State aid compatible with the common market, there can be no doubt, as is clear from the case‑law, that the Member State which requested those measures will act to give due effect to them (see in particular, judgment in Piraiki‑Patraiki and Others v Commission, cited in paragraph 53 above, paragraphs 8 and 9; judgments in Case T‑380/94 AIUFFASS and AKT
v Commission
[1996] ECR II‑2169, paragraphs 46 and 47, and Case T‑114/00 Aktionsgemeinschaft Recht und Eigentum v Commission [2002] ECR II-5121, paragraphs 73 and 74), the same cannot apply in this case since the Italian Republic did not ask the Commission to adopt the contested decision, so that, in the absence of any evidence to the contrary, it must remain a possibility that the Italian Republic may forgo recovery of the assistance at issue from the applicant or the final beneficiaries.
80. It follows that the contested decision did not directly affect the applicant’s legal situation.
81. None of the arguments or circumstances, unsubstantiated as they are, which are put forward by the applicant in its written submissions is such as to affect that conclusion.
82. As regards, firstly, the judgment in Dreyfus v Commission (cited in paragraph 45 above), which is mentioned by the applicant in support of the claim that it has standing to bring an action, it must be pointed out that the situation which arises in this case cannot be treated in the same way as that which gave rise to that judgment. The Court of Justice stated, in paragraphs 52 and 53 of the judgment in Dreyfus v Commission, that the option available to the addressee of the contested decision to forgo the Community financing at issue was ‘purely theoretical’, so that that decision, refusing such financing, deprived the applicant ‘of any real possibility of performing the contract awarded to it, or of obtaining payment for supplies made thereunder’. For that reason, the Court held that the applicant was directly concerned by that decision. Conversely, in this case, it follows from the foregoing analysis that the possibility for the Italian Republic to meet out of its own funds the cost of financing completion of the works without, moreover, recovering the sums unduly paid from the applicant is by no means theoretical.
83. As regards, secondly, the circumstance mentioned briefly in the reply that the applicant is ‘a public body which fulfils certain conditions’, it is sufficient to point out that, although decentralised or autonomous public authorities may be entitled to bring an action for annulment under Article 230 EC, the admissibility of such actions is, as is clear from the judgment in Regione autonoma Friuli‑Venezia Giulia v Commission
(cited in paragraph 43 above, paragraphs 28 to 35), cited by the applicant, subject to the condition that those authorities are, in particular, directly concerned by the contested act. However, for the reasons set out above, that is not true of the applicant in this case.
84. As regards, thirdly, the circumstance that direct legal relations existed between the applicant and the Commission in respect of the project at issue by virtue of the fact that certain documents were sent directly to the applicant by the defendant, it is sufficient to note that such a circumstance, even if proved, does not in any way demonstrate the existence of a direct connection between the applicant and the contested decision for the purposes of the fourth paragraph of Article 230 EC, since the existence of such a connection can be proved only where that decision directly affects the applicant’s legal situation without the application of other intermediate rules. It is clear from the above analysis that such is not the case.
85. Finally, as regards, fourthly, the circumstance that the contested decision was adopted taking into account the applicant’s specific situation, it is sufficient to point out that such a circumstance, if proved, would at most be such as to demonstrate that the applicant is individually concerned by that decision. That circumstance is, however, irrelevant for the purpose of determining whether the applicant is directly concerned by the contested decision.
86. It follows from all the foregoing considerations that the applicant is not directly concerned by the contested decision since the latter produces effects only in the context of the legal relations between the Commission and the Italian Republic.
87. Consequently, without there being any need to consider whether the applicant is individually concerned by the contested decision, the present application must be dismissed as inadmissible.
Decision on costs
Costs
88. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, as applied for in the Commission’s pleadings.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicant shall bear its own costs and shall pay those of the defendant.