62003TO0392_EN
Parties
Grounds
Operative part
Parties
In Joined Cases T‑392/03, T‑408/03, T‑414/03 and T‑435/03,
Regione Siciliana,
represented by G. Aiello and A. Cingolo, avvocati dello Stato,
applicant,
v
Commission of the European Communities,
represented by E. de March, L. Flynn and G. Wilms, acting as Agents, assisted by A. Dal Ferro, lawyer,
defendant,
APPLICATION, in Case T‑392/03, for annulment of the Commission’s letter of 6 October 2003, in so far as it concerns the detailed rules for the recovery of sums paid by the European Regional Development Fund (ERDF) towards the ‘Gibbesi Dam’ infrastructure project, and the preceding and subsequent acts; in Case T‑408/03 for annulment of the letter of 6 October 2003, in so far as it concerns the detailed rules for the recovery of sums paid by the ERDF towards the ‘Aragona Favara’ and ‘Piana di Catania’ infrastructure projects, and the preceding and subsequent acts, including in particular the Commission’s letters of 13 August 2003 and 14 August 2003; in Case T‑414/03, for annulment of the letter of 6 October 2003, in so far as it concerns the detailed rules for the recovery of sums paid by the ERDF towards the ‘Messina-Palermo Motorway’ infrastructure project, and the preceding and subsequent acts, including the Commission’s charge notice No 3240406591 of 25 September 2002; and, in Case T‑435/03, for annulment of the Commission’s letter of 24 October 2003 concerning offsetting the debts owed to and by the Commission in connection with ERDF assistance for the ‘Porto Empedocle’, ‘Gibbesi Dam’, ‘Messina-Palermo Motorway’, ‘Aragona Favara’ and ‘Piana di Catania’ projects, and the preceding and subsequent acts,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of I. Pelikánová, President, K. Jürimäe and S. Soldevila Fragoso (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Grounds
Background to the case
1. By Decision C(87) 2090 026 of 17 December 1987, the Commission granted the Italian Republic European Regional Development Fund (ERDF) assistance of ITL 94 940 620 056 towards building a dam across the Gibbesi River (‘the “Gibbesi Dam” assistance’). The authority responsible for carrying out the project was the Ente minerario siciliano (the Sicilian Mines Authority). By letter of 28 December 1996, the Italian authorities applied for an extension of the time-limit, set at 31 March 1995, for presentation of the claim for final payment. Subsequently, the Commission decided to initiate the procedure laid down in Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) 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 by Council Regulation (EEC) No 2082/93 of 20 July 1993 (OJ 1993 L 193, p. 20), in order to investigate the existence of any irregularities. Following observations made in that regard by the applicant and by the Italian authorities, the Commission adopted Decision C(2002) 4905 of 11 December 2002, addressed to the Italian Republic, withdrawing the ‘Gibbesi Dam’ assistance, ordering the recovery of the advance of ITL 75 592 496 044 (EUR 39 040 266.10) already paid and lifting the requirement to pay ITL 18 898 124 012 (EUR 9 760 066.53) in respect of the outstanding balance.
2. By decision C(93) 3961 of 22 December 1993, the Commission granted the Italian Republic ERDF assistance towards infrastructure investment in respect of the motorway linking Messina and Palermo (‘the “Messina-Palermo Motorway” assistance’). The authority responsible for the project was the Assessorato dei lavori publici (Regional Directorate for Public Works) for the Regione Siciliana and the executing agency was the Consortium for the Messina-Palermo Motorway. By letter of 5 September 2002, the Commission closed that assistance due to delays in carrying out the work, and calculated the balance to be withdrawn at EUR 26 378 246 and the balance to be recovered at EUR 58 036 177.
3. On 3 August 2001, the Commission prepared charge notice No 3240304871 following the closure of the ERDF assistance towards completing the industrial area of Aragona Favara (‘the “Aragona Favara” assistance’). That note provided for a debt owed to the Commission of ITL 5 614 002 097 (EUR 2 899 390.11) and gave 30 September 2001 as the due date for payment, adding that failure to comply with that time-limit would give rise to charging of default interest. By letter of 21 February 2002, the Commission again claimed reimbursement of that sum from the Italian Ministry of the Economy and Finance. The amount stated in charge notice No 3240304871 was paid on 1 April 2003. By letter of 14 August 2003, the Commission sent to the Italian authorities, with a copy to the applicant, a table setting out the detailed calculation of default interest due as a result of failing to comply with the due date stipulated in charge notice No 3240304871. It showed that, as at 29 August 2003, the outstanding balance was EUR 284 702.81, plus EUR 60.41 for each additional day’s delay.
4. On 27 June 2001 the Commission prepared charge notice No 3240303927, following the closure of ERDF assistance towards building the rural aquaduct to supply drinking water to the Piana di Catania (‘the “Piana di Catania” assistance’). In that letter, the Commission sought repayment of the advance already paid of ITL 1 857 500 000 (EUR 959 318.69). The note gave 31 August 2001 as the due date for payment, adding that failure to comply with that time-limit would give rise to charging of default interest. The amount stated in charge notice No 3240303927 was paid on 25 July 2003. In a letter of 13 August 2003, addressed to the Italian authorities with a copy to the applicant, the Commission calculated the balance to be paid, taking into account the default interest owing because the due date stipulated in the charge notice had been exceeded. As at 28 August 2003, that amount was thus EUR 121 007.04, plus EUR 26.33 for each additional day’s delay.
5. On 25 September 2002 the Commission issued charge notice No 3240406591, addressed to the Italian Ministry of the Economy and Finance, following the closure of the ‘Messina-Palermo Motorway’ assistance (see paragraph 2 above). That note provided that a debt of EUR 58 036 177 was owed to the Commission and gave 30 November 2002 as the due date for payment, adding that failure to comply with that time-limit would give rise to charging of default interest. The amount stated in charge notice No 3240406591 was paid on 1 August 2003. By a second letter of 14 August 2003, addressed to the applicant with a copy to the Italian authorities, the Commission calculated the balance to be paid, taking into account the default interest due as a result of failing to comply with the due date stipulated in the charge notice. As at 29 August 2003, that amount was thus EUR 2 548 927.80, plus EUR 471.71 for each additional day’s delay.
6. Following the decision to withdraw the ‘Gibbesi Dam’ assistance, on 19 December 2002 the Commission prepared charge notice No 3240409358, to the attention of the Italian Republic. That note provided that a debt of EUR 39 040 266.10 was owed to the Commission and gave 31 January 2003 as the due date for the payment, adding that failure to pay would give rise to charging of default interest. By letter of 4 August 2003, the Commission sent the applicant, at its request, a statement of the default interest due at that stage.
7. By letters of 4 and 22 September 2003, addressed to the Commission, the Regione Siciliana challenged the calculation of the amount of default interest in respect of the four abovementioned charge notices and contended that the Commission should, of its own motion, have offset the amounts owing against the ERDF’s interim claims for payment in respect of the regional operational programme ‘Sicily 2000-2006’ (‘Sicily ROP’), which in its view would have prevented or suspended charging of that default interest.
8. By letter of 6 October 2003, addressed to the Regione Siciliana with a copy to the Italian authorities, the Commission’s accounting officer adopted a position on the questions raised by the Regione Siciliana. He noted that, with regard to the period between the respective due dates of the charge notices and 1 January 2003, the date of the entry into force of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), the legislation in force (including Article 49 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1), as last amended by Regulation (EC, ECSC, Euratom) No 762/2001 (OJ 2001 L 111, p. 1), as regards separating the internal audit function from the ex ante
financial control function) already required recipients of Community aid to pay default interest in the event of recovery of undue payments owed to the Community. Moreover, the Commission accounting officer explained that the offset sought by the applicant had been expressly provided for as a method of recovering receivables only since the entry into force of Regulation No 1605/2002, and that instructions were going to be given that the interest on the charge notices in question should be offset against the payment due to be made to the Italian Republic in connection with payments relating to the applicant.
9. By letter of 24 October 2003, sent to the Regione Siciliana with a copy to the Italian authorities, the Commission’s accounting officer explained that certain of the Commission’s receivables would be offset against certain debts. Those receivables were as stated in charge notice No 3240504102 of 24 October 2003 in respect of ERDF assistance towards urban development work and related structures on the industrial site of Porto Empedocle (‘the “Porto Empedocle” assistance’), an amount of EUR 7 704 723, and in charge notice No 3240409358 of 19 December 2002 (‘Gibbesi Dam’ assistance), an amount of EUR 39 040 266.10, and the default interest in respect of charge notice No 3240406591 of 25 September 2002 (‘Messina-Palermo Motorway’ assistance), an amount of EUR 2 581 947.74, in charge notice No 3240304871 of 3 August 2001 (‘Aragona Favara’ assistance), an amount of EUR 288 931.82 and in charge notice No 3240303927 of 27 June 2001 (‘Piana de Catania’ assistance), an amount of EUR 122 876.18. The debts in question concerned a claim for payment in respect of Commission Decision C(2000) 2346 of 8 August 2000 granting ERDF assistance in connection with the Sicily ROP, amounting to a total of EUR 50 335 454.98.
10. As it had stated in its letter of 24 October 2003, the Commission proceeded on 7 November 2003 to offset the abovementioned receivables against the abovementioned debts. Similarly, by letter of 20 November 2003, the Commission informed the Italian authorities that it was going to offset the amount owed by the Italian Republic by way of interest in respect of charge notice No 3240409358 (‘Gibbesi Dam’ assistance), an amount of EUR 1 880 126.91. That amount was offset on 3 December 2003.
Procedure and forms of order sought
11. By applications lodged at the Registry of the Court of First Instance on 4, 12, 11 and 24 December 2003, the applicant brought the present actions.
12. By order of the President of the Fifth Chamber of the Court of First Instance of 9 July 2004, the present cases were joined for the purposes of the oral procedure and judgment, pursuant to Article 50 of the Rules of Procedure of the Court of First Instance.
13. By order of 12 January 2006, the Court of First Instance stayed the proceedings in these joined cases until delivery of the judgment of the Court of Justice in Case C‑417/04 P Regione Siciliana
v Commission, pursuant to the third paragraph of Article 54 of the Statute of the Court of Justice, and Article 77(a) and Article 78 of the Rules of Procedure of the Court of First Instance. By order of 11 September 2006, the Court of First Instance again stayed the proceedings on the same ground until delivery of the judgment of the Court of Justice in Case C‑15/06 P Regione Siciliana
v Commission .
14. By way of measures of organisation of procedure, provided for in Article 64(3)(a) and (b) of the Rules of Procedure, the parties were asked inter alia to submit their written observations to the Court on the effects on the present cases of Cases C‑417/04 P Regione Siciliana v Commission [2006] ECR I‑3881, and C‑15/06 P Regione Siciliana
v Commission
[2007] ECR I‑2591. The parties complied with those requests.
15. The applicant claims that the Court should:
– annul the Commission’s letter of 6 October 2003, in so far as it concerns the detailed rules for recovering the sums paid by the ERDF in respect of the ‘Gibbesi Dam’ assistance, and the preceding and subsequent acts (Case T‑392/03);
– annul the Commission’s letter of 6 October 2003, in so far as it concerns the detailed rules for recovering the sums paid by the ERDF in respect of the ‘Aragona Favara’ and ‘Piana di Catania’ assistance, and the preceding and subsequent acts, including, in particular, the Commission’s letter of 13 August 2003 and its letter of 14 August 2003 (’the letter of 14 August 2003’) (Case T‑408/03);
– annul the Commission’s letter of 6 October 2003, in so far as it concerns the detailed rules for recovering the sums paid by the ERDF in respect of the ‘Messina-Palermo Motorway’ assistance, and the preceding and subsequent acts, including the Commission’s charge notice No 3240406591 of 25 September 2002 (Case T‑414/03);
– annul the Commission’s letter of 24 October 2003, concerning offsetting the Commission’s receivables against its debts in connection with assistance for the ‘Porto Empedocle’, ‘Gibbesi Dam’, ‘Messina-Palermo Motorway’, ‘Aragona Favara’ and ‘Piana di Catania’ assistance, and the preceding and subsequent acts (Case T‑435/03);
– order the Commission to pay the costs.
16. The Commission contends that the Court should:
– dismiss the actions as inadmissible;
– in the alternative, dismiss the actions as unfounded;
– order the applicant to pay the costs.
Law
17. 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.
18. 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.
19. In this case the Court of First Instance considers itself to be sufficiently informed by the contents of the case-file as regards the admissibility of the actions, and finds that there is no need to hear the oral explanations of the parties in that regard. Nor is it necessary to grant the applicant’s request for the oral proceedings to commence, in view of the economic significance of the case and the questions of principle raised, since that request concerns only the substance of the cases.
Regarding the charge notice of 25 September 2002 and the letters of 13 and 14 August 2003 (Cases T‑408/03 and T‑414/03)
Arguments of the parties
20. The Commission contends that the acts in question were formally addressed to the competent Italian ministry and that they were sent to the applicant purely for informational purposes. It maintains that those acts are not of direct concern to the applicant and that only the Italian Republic can seek their annulment.
21. The Commission also contends that the applications make no mention of the grounds on which the applicant alleges those acts to be unlawful, thereby infringi ng Article 21 of the Statute of the Court of Justice, which applies to the Court of First Instance by virtue of Article 53 of that Statute, and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance. Lastly, the Commission rejects the applicant’s argument that the letters of 13 and 14 August 2003 are not autonomous acts in relation to the letter of 6 October 2003 and maintains that those letters are only the logical consequence of the failure on the part of the Italian Republic to pay the sums stated in charge notices No 3240304871 of 3 August 2001 and No 3240303927 of 27 June 2001 within the time-limits set.
22. Lastly, the Commission contends that the applications for annulment of the acts of 25 September 2002 and 13 and 14 August 2003 must be held to be inadmissible because they were brought outside the time-limit of two months and ten days set in that regard. Thus, in the case of the last two acts, they were received by the applicant, according to the stamps placed on them by the presidency of the Regione Siciliana, on 22 or 26 August 2003, while the application in Case T‑408/03 was not lodged until 12 December 2003.
23. The applicant points out that the acts in question cannot be regarded as acts that are autonomously open to an action for annulment. It maintains, however, that those acts failed to state the reasons on which they were based and that it was only in the letter of 6 October 2003 that the Commission informed it of its position. Therefore, the first act which can properly be contested is that letter of 6 October 2003. Moreover, the absence of a statement of the reasons on which the applications for annulment of the acts at issue are based is a clear and logical consequence of the fact that they are not fully autonomous and are open to an action for annulment only if they are read in the context of the letter of 6 October 2003, which sets out their content and their legal basis.
Findings of the Court
24. As a preliminary point, it should be noted that it is not possible to establish clearly, in the light of the forms of order submitted by the applicant in Case T‑408/03, whether its action relates to charge notices No 3240304871 of 3 August 2001 concerning the ‘Aragona Favara’ assistance, and No 3240303927 of 27 June 2001 concerning the ‘Piana di Catania’ assistance, or rather the letters of 13 and 14 August 2003 concerning the default interest due as a result of failure to pay within the time-limits the sums stated in those charge notices. However, that fact has no effect as regards the admissibility of the present actions.
25. It is apparent from examination of those four acts, and of charge notice No 3240406591 of 25 September 2002 concerning the ‘Messina-Palermo Motorway’ assistance, and from the letters of 14 August 2003 concerning the charging of default interest due to the late payment of the amount claimed in charge notice No 3240304871 of 3 August 2001 concerning the ‘Aragona Favara’ assistance, and of 13 August 2003 concerning the charging of default interest due to the late payment of the amount claimed in charge notice No 3240303927 of 27 June 2001 concerning the ‘Piana di Catania’ assistance, which were addressed to the Italian Republic and were sent to the applicant purely for informational purposes, that they merely implement earlier Commission decisions withdrawing or closing the assistance in question. Those decisions to withdraw and recover assistance already provided for the procedure for repaying advances unduly received to be laid down in charge notices addressed to the Italian authorities by the Commission’s accounting officer, and the applicant itself accepts that those notices do not amount to decisions and stem directly from the decisions withdrawing assistance.
26. Thus, on the one hand, charge notices No 3240304871 of 3 August 2001 concerning the ‘Aragone Favara’ assistance, No 3240303927 of 27 June 2001 concerning the ‘Piana di Catania’ assistance, and No 3240406591 of 25 September 2002 concerning the ‘Messina-Palermo Motorway’ assistance, do not contain any provision requesting the Italian Republic to recover from the applicant amounts unduly paid. There is therefore no reason to conclude that the Italian Republic could not decide to take upon itself the burden of reimbursing the ERDF (see, to that effect, Case C‑417/04 P Regione Siciliana
v Commission, paragraph 26).
27. On the other hand, the letters of 13 and 14 August 2003 cannot be regarded as being of direct concern to the applicant. They were in fact addressed to the Italian Republic with copies to the applicant, and their purpose is to claim default interest because the time-limits set in the relevant charge notices were exceeded. Therefore, those letters are merely the logical consequence of the Italian Republic’s failure to pay the sums stated in charge notices No 3240304871 of 3 August 2001 and No 3240303927 of 27 June 2001 within the time-limits stipulated.
28. In view of the foregoing, the actions in Cases T‑408/03 and T‑414/03 must be declared inadmissible in so far as they seek the annulment of the charge notices of 25 September 2002 and the letters of 13 and 14 August 2003, without there being any need to adjudicate on the other pleas of inadmissibility raised by the Commission.
Regarding the letter of 6 October 2003 concerning the calculation of default interest and the Commission’s failure to offset of its own motion (Cases T‑392/03, T-408/03 and T-414/03)
Arguments of the parties
29. The Commission considers that the application for annulment of the letter of 6 October 2003 is inadmissible since, although that letter was addressed to the applicant, it has no direct impact on the latter’s legal position and is not therefore of direct concern to it. That letter relates to matters such as the calculation of default interest on the Commission’s charge notices and the use of offsetting, which concerns debts owed to both the Commission, on the one hand, and the Italian Republic, on the other. The contested decision would have legal effects on the applicant’s position only if the latter was required, as a result of that decision, actually to reimburse the amount in question.
30. According to the Commission, any detrimental effects of the letter of 6 October 2003 would concern only the Italian Republic and not the applicant, which would suffer damage as a result of that letter only if the authorities of that State, by specific and independent action, required it to reimburse the sums which it owes to the Commission. The fact that the letter of 6 October 2003 is formally addressed to the applicant is moreover the result of a transparent, open and simplified management practice of Community accounting positions, since the applicant had taken part in various meetings concerning the assistance in question. Ultimately, only the Italian Republic could seek annulment of the letter of 6 October 2003 and not the applicant, which does not have claims that it seeks to assert.
31. The Commission moreover contends that the letter of 6 October 2003 is not an act open to an action for annulment for the purposes of Article 230 EC. It points out that, in order to be the subject of an action for annulment, the act concerned must be intended from an objective point of view to produce legal effects in relation to third parties and may thus directly affect the latter’s interests by bringing about a distinct change in their legal position. Those conditions are not met in the case of an act in which the Commission merely gives the interpretation it intends to adopt in the application of a rule – in this case with regard to the requirement to pay default interest on the charge notices and to offsetting as a method of recovering debts. The interests of third parties can only genuinely be adversely affected by measures which are actually adopted according to guidance given earlier in such an act, such as a request for payment of default interest on charge notices or actual refusal to use offsetting in order to extinguish debts, according to the criteria laid down in the letter of 6 October 2003 (see, to that effect, Case 114/86 United Kingdom
v Commission
[1988] ECR 5289, paragraphs 12 and 13).
32. Lastly, as regards Case T‑392/03, the Commission also contends that the action is inadmissible because the applicant has no interest in obtaining the annulment of the letter of 6 October 2003. It points out that the note in question does not concern the ‘Gibbesi Dam’ assistance in any way. The action in Case T‑392/03 relates only to the procedure for payment of the charge notice corresponding to that assistance. Therefore there is no link between the subject-matter of the action and the letter of 6 October 2003. The Commission relies in that regard on Case 88/76 Société pour l’exportation des sucres
v Commission [1977] ECR 709, the order in Case C‑164/02 Netherlands
v Commission
[2004] ECR I‑1177, paragraphs 18 and 24, and the order in Case T‑78/98 Unione provinciale degli agricoltori di Firenze and Others
v Commission
[1999] ECR II‑1377.
33. The applicant submits that it does not operate as a body separate from the Italian Republic but as a territorial entity of that State, which is the specific recipient of the assistance in question. It also submits that the letter of 6 October 2003 was formally addressed to it and is of direct and individual concern to it, since there is a clear causal link between its individual situation and the act adopted. That letter thus replies to its letter of 22 September 2003 addressed to the Commission, in which it challenged the calculation of the amount of default interest. The applicant also relies on Article 8 of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1), which sets out the principle of ‘partnership’ between the Commission and national and regional authorities. It also points to the references made to it in Council 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 by Council Regulation (EEC) No 2081/93 of 20 July 1993 (OJ 1993 L 193, p. 5), and in the decisions awarding the assistance in question, and also in its official correspondence with the Commission. The applicant also submits that the Italian Republic had no discretion as regards decisions concerning the financing in the present case.
34. The applicant further maintains that the letter of 6 October 2003 does not constitute a mere expression of the general position adopted by the Commission when faced with a certain type of problem, but rather supplements the statements of reasons contained in the charge notices already prepared. The letter in question is thus an explanatory act with the content of a legal act, in which the Commission set out, for the first time, the reasons of fact and of law substantiating the various charge notices that had been prepared. That letter therefore constitutes, potentially, an act adversely affecting the applicant in so far as it establishes that the charges concerned are genuine and excludes them being the result of procedural errors or accidents.
Findings of the Court
35. The letter of 6 October 2003 sets out the position taken on two questions raised by the applicant at a meeting on 12 September 2003 and in a letter of 22 September 2003, concerning the charging of default interest on charge notices No 3240303927 of 27 June 2001 (‘Piana di Catania’ assistance), No 3240304871 of 31 August 2008 (‘Aragona Favara’ assistance), and No 32404006591 of 25 September 2002 (‘Messina-Palermo Motorway’ assistance).
36. It should be recalled that, according to settled case-law, only acts the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts which may be the subject of an action for annulment within the meaning of Article 230 EC (Case 60/81 IBM
v Commission
[1981] ECR 2639, paragraph 9, and Joined Cases T‑10/92 to T‑12/92 and T‑15/92 Cimenteries CBR and Others
v Commission
[1992] ECR II‑2667, paragraph 28).
37. In the present case, the letter of 6 October 2003 did not produce such binding legal effects capable of affecting the interests of the applicant. As regards the first question raised by the applicant, the Commission merely sets out the relevant Community rules concerning the calculation of default interest for the period between the due dates of the charge notices in question and 1 January 2003, the date of the entry into force of the new Community financial regulation, Regulation No 1605/2002. Therefore, the letter of 6 October 2003 does not in itself constitute a claim for payment of default interest or calculate the actual amount of any such interest.
38. The Commission explains in that letter of 6 October 2003 why it did not of its own motion offset the receivables shown in the charge notices in question against the payments intended for the Italian Republic of which the applicant was to be the end recipient. The Commission explains in that regard, first, that such offsetting has been expressly provided for as a method of recovering receivables only since the entry into force of the new financial regulation. Secondly, it explains that in the case of payments since the entry into force of that regulation, the default interest to be paid by the Italian Republic is not the result of the absence of offsetting against the payment made in 2003, but of the failure to reimburse amounts that have been outstanding since their due date. Thus, in its letter of 6 October 2003, the Commission did not adopt a decision, it merely gave reasons why it did not resort to offsetting earlier, which would have avoided or suspended the payment of default interest.
39. Furthermore, it is clear from the letter of 6 October 2003 that the default interest in question was to be paid by the Italian Republic, to which the corresponding charge notices were addressed. Similarly, the receivables which could have been offset were payments intended for the Italian Republic, although the applicant was their end recipient. The Italian Republic could have decided to bear the burden of reimbursing principal and interest to the ERDF itself out of its own funds without passing that burden on to the applicant (see, to that effect, Case C‑417/04 P Regione Siciliana
v Commission, paragraph 26). Thus, in any event, the letter of 6 October 2003 is not of direct concern to the applicant.
40. In the light of the foregoing, the actions in Cases T‑392/03, T‑408/03 and T‑414/03 must be declared inadmissible in so far as they relate to annulment of the letter of 6 October 2003.
Regarding the letter of 24 October 2003 concerning offsetting (Case T‑435/03)
Arguments of the parties
41. The Commission claims that the application for annulment of the letter of 24 October 2003 is inadmissible, putting forward the same arguments in essence as those it put forward to support its case regarding the applications for annulment of the letter of 6 October 2003 (see paragraph 29 et seq. above). It submits inter alia that, even though the letter of 24 October 2003 is addressed to the applicant, it has no direct effect on the latter’s legal position and cannot therefore be of direct concern to it. It adds that it is only the Italian Republic which is in a position of indebtedness with regard to the ‘Messina-Palermo Motorway’ assistance, the ‘Gibbesi Dam’ assistance, the ‘Porto Empedocle’ assistance, the ‘Aragona Favara’ assistance and the ‘Piana di Catania’ assistance. The applicant would suffer damage resulting from the notice in question only if the Italian authorities, through specific independent action, required it to reimburse the sums which that State owes to the Commission.
42. The applicant disputes its alleged lack of standing, putting forward the same arguments as it put forward in support of the admissibility of the applications for annulment of the letter of 6 October 2003 (see paragraphs 33 and 34 above).
Findings of the Court
43. Although the letter of 24 October 2003 was addressed to the applicant and copied, for informational purposes, to the Italian Ministry of the Economy and Finance, it none the less concerns a number of debts owed to the Commission by the Italian Republic concerning the withdrawal of the five ERDF assistance projects mentioned above.
44. By way of measures of organisation of procedure, the Court of First Instance asked the parties to identify the entities with the various debts and claims at issue and, if one of them was the Italian Republic, to state whether those amounts had been allocated, in any circumstances, to the applicant, or whether it could use them freely to finance other projects apart from those involving that region. The Commission, in its observations in answer to the questions from the Court of First Instance, stated that the debts which were to be offset concerned a claim for payment relating to Commission Decision C(2000) 2346 of 8 August 2000, granting ERDF assistance in connection with the Sicily ROP, of which the Italian Republic was the recipient. The Commission also stated that the holder of the account on which the offset operations referred to in the letter of 24 October 2003 were carried out was the Italian Ministry of the Economy and Finance. The applicant appears to confirm this statement, claiming, however, that the role of the Italian Republic was merely to act as an intermediary, exercising supervision and control, and that the sums at issue were ‘for regional purposes’ and were therefore owed to it.
45. The Italian Republic also had discretion and could therefore decide not to claim from the applicant total or partial reimbursement of the sums stated in the letter of 24 October 2003, both as regards the principal and the default interest (see, to that effect, Case C‑417/04 P Regione Siciliana, paragraph 26).
46. Consequently, although the letter of 24 October 2003 was formally addressed to the applicant, the entity to which the decision regarding offsetting was actually addressed was the Italian Republic. According to the case-law of the Court cited above (Cases C‑417/04 P and C‑15/06 P Regione Siciliana
v Commission ), that decision cannot be regarded as being of direct concern to the applicant.
47. In those circumstances, the action in Case T‑435/03 must be dismissed as inadmissible.
The applications for annulment of preceding and subsequent acts (Cases T‑392/03, T‑408/03, T‑414/03 and T‑435/03)
48. Since the subject-matter of the applications for annulment of all ‘preceding and subsequent acts’ is insufficiently specific, those applications must be dismissed under Article 44(1)(c) of the Rules of Procedure (see, to that effect, Case T‑166/98 Cantina sociale di Dolianova and Others
v Commission
[2004] ECR II‑3991, paragraph 79).
49. It follows from all of the foregoing considerations that the present actions must be dismissed as inadmissible in their entirety.
Costs
50. 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 in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby:
1. Dismisses the actions as inadmissible.
2. Orders the Regione Siciliana to pay the costs.