Appeal brought on 4 July 2013 by the Italian Republic against the judgment delivered by the General Court (First Chamber) on 19 April 2013 in Joined Cases T-99/09 and T-308/09 Italian Republic v European Commission
(Case C-385/13 P)
Language of the case: Italian
Parties
Appellant: Italian Republic (represented by: G. Palmieri e P. Gentile, acting as Agents)
Other party to the proceedings: European Commission
Forms of order sought
Setting aside of the judgment of the General Court of the European Union of 19 April 2013 in Joined Cases T-99/09 and T-308/09, notified to the Italian Government on 24 April 2013
Adjudicating on the merits of the case, the annulment of the following acts:
Letter No 000841 of 2 February 2009 of the European Commission — Directorate General for Regional Policy — concerning ‘Payments made by the Commission which differ from the amount requested’ which contained the following decision: ‘Therefore, the date from which the European Commission will regard as non-eligible the expenditure incurred in relation to measure 1.7 of Regional Operational Programme 2000-2006 is 29 June 2007 and not 17 May 2006, as stated in the memorandum of 22 December 2008 referred to above’;
Letter No 001059 of 6 February 2009 of the European Commission — Directorate General for Regional Policy — concerning ‘Suspension of the request for payment and for information concerning financial corrections under Article 39 of Regulation No 1260/99 for the Campania Regional Operation’ which contained the following decision: ‘Therefore, the date from which the European Commission will regard as non-eligible the expenditure incurred in relation to measure 1.7 of Regional Operational Programme 2000-2006 is 29 June 2007 and not 17 May 2006, as previously indicated’;
Letter No 012480 of 22 December 2008 of the European Commission — Directorate General for Regional Policy — concerning ROP Campania 2000-2006 (CCI No 1999 IT 16 1 PO 007) — Outcome of infringement procedure 2007/2195 on waste management in Campania, by which ‘the Commission requests that, with effect from the next request for payment, all expenditure relating to measure 1.7 incurred after 29 June 2007 be deducted’.
Pleas in law and main arguments
In support of its appeal, the Italian Republic relies on the following eight pleas:
First plea: Breach of Article 9(e), (f), (h), (j), (k), (l), (m); point (f) of the first subparagraph of Article 32(3), Article 32(4) and (5); and the second subparagraph of Article 31(2) of Regulation No 1260/991 .
In order for a request for payment of assistance from a structural fund for actions provided for in a measure to be declared unacceptable on the basis that an infringement procedure is pending, it is necessary that there be a specific and non-generic relationship between the infringement and the measure in question and the Commission would have to show the specific danger that financing the measure would result in financing the infringement. It would not be enough, as the General Court found, to only have a ‘sufficiently direct link’ which is not otherwise corroborated.
Second plea: Breach of the second clause of point (f) of the first subparagraph of Article 32(3) of Regulation No 1260/1999.
In the present case, in any event, such a link is missing because the General Court found that it was apparent from the case file that in the infringement procedure the insufficient differentiated collection was relied on as a contributory cause for the insufficiency of landfills and that under measure 1.7 aid was to be provided to municipalities to increase differentiated collection. The General Court therefore was unable to clarify whether the link between the infringement and the measure was such that the financing of the measure mitigated or aggravated the infringement. On that basis the General Court should have ruled out the existence of any such link and accepted the first plea of the application initiating proceedings.
Third plea: Failure to provide adequate reasons.
In the third plea of the application at first instance, the Italian Government demonstrated clearly that there was no overlap between the infringement and the measure. The General Court, when rejecting the first plea, found to the contrary without examining the evidence submitted by the Italian Government, and in so doing it failed to provide adequate reasons.
Fourth plea: Breach of point (f) of the first subparagraph of Article 32(3) of Regulation No 1260/1999. Failure to provide adequate reasons.
The breach of the above vitiates also the part of the judgment in which the General Court rejected the second plea of the application at first instance.
Fifth plea: Failure to provide adequate reasons.
There is a failure to provide adequate reasons also with respect to the rejection of the third plea of the application initiating proceedings, in which the Italian Government stated that the contested proceedings were grounded on a letter of the Commission of 20 October 2008 which challenged facts which were not referred to in the infringement procedure. The General Court failed to take account of that argument.
Sixth plea: Breach of the second clause of point (f) of the first subparagraph of Article 32(3) of Regulation No 1260/1999.
In any event, since, when ruling on the fourth plea, the General Court found in essence that the letter of 20 October 2008 referred to facts unconnected to the infringement proceedings it therefore should have accepted the third plea. By not having done so, it breached the second clause of point (f) of the first subparagraph of Article 32(3) of Regulation No 1260/1999.
Seventh plea: Breach of the first and second clauses of point (f) of the first subparagraph of Article 32(3) and of Article 39(1) and (2) of Regulation No 1260/1999.
The General Court wrongly rejected the fourth plea of the application initiating proceedings, in which the Italian Government criticised the Commission for having suspended the payments due to concerns about the correctness of the management of the measure; it did, however, require that the procedure set out in Article 39(1) and (2) of Regulation No1260/1999, referred to in the first clause of point (f) of the first subparagraph of Article 32(3), be followed. The General Court was unable to refute the arguments of the Italian Government concerning the reasoning of the measure adopted by the Commission.
Eight plea: Breach of the second paragraph of Article 296 TFEU.
The General Court wrongly rejected the argument that the Commission had failed to provide adequate reasons. Considering the importance that argument, the Commission should have explained why there was not any contradiction between condemning insufficient differentiated collection in the infringement procedure and refusing to finance the measure aimed at increasing differentiated collection.
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1 Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ L 161, 26.6.1999, p. 1).