JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
4 May 2017 (*)
(Action for annulment — ERDF — Article 41(3) of Regulation (EC) No 1083/2006 — Refusal to grant a financial contribution to a major project — Undertaking responsible for project implementation — Lack of direct concern — Inadmissibility)
In Case T‑403/15,
JYSK sp. z o.o., established in Radomsko (Poland), represented by H. Sønderby Christensen, lawyer,
applicant,
v
European Commission, represented initially by R. Lyal, B.-R. Killmann and M. Clausen, and subsequently by R. Lyal and B.-R. Killmann, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU seeking annulment of Commission Decision C(2015) 3228 of 11 May 2015, refusing to make a financial contribution from the European Regional Development Fund (ERDF) to the major project ‘European Shared Services Centre — Intelligent Logistics Systems’ forming part of the operational programme ‘Innovative Economy’ drawn up by the Republic of Poland for the 2007-2013 programming period.
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude, President, I. Ulloa Rubio and A. Marcoulli (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 24 November 2016,
gives the following
Judgment
Background to the dispute
1        On 1 October 2007, by Decision C(2007) 4562, the European Commission adopted the operational programme ‘Innovative Economy’ submitted by the Republic of Poland pursuant to Article 32 of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).
2        It is apparent from the file that the applicant, JYSK sp. z o.o., a Polish company governed by private law, submitted to the Polish authorities, on 17 July 2008, a grant application in respect of the project ‘European Shared Services Centre — Intelligent Logistics Systems’ (‘the project’) and that, on 18 February 2009, the Polish authorities and the applicant signed a contract relating to the award of a grant for the implementation of that project within the framework of the operational programme ‘Innovative Economy’ (‘the contract’).
3        The grant was intended to finance part of the eligible expenditure of the project; 85% thereof was financed by the Republic of Poland in the form of a contribution from the European Regional Development Fund (ERDF) and 15% by way of State funds. In addition, it is apparent from the contract, as amended on 19 April 2010, that, if the Commission refused to contribute to the funding pursuant to Article 41(3) of Regulation No 1083/2006, the contract would expire on the date of notification of the Commission’s decision to the beneficiary (see Article 5(12) of the contract) and that, in that case, the beneficiary would undertake to repay all or part of the funds already paid by the Polish authorities (see Article 5(14) of the contract).
4        On 30 April 2010, the Republic of Poland submitted to the Commission, under Articles 39 to 41 of Regulation No 1083/2006, a request for confirmation of the financial contribution from the ERDF in respect of the project.
5        Following an exchange of letters between the Republic of Poland and the Commission, the Commission having expressed doubts as to whether it would be able to confirm that a contribution would be made from the ERDF to the project, the Republic of Poland withdrew, by letter of 15 July 2011, the request for confirmation of the ERDF’s financial contribution. By letter of 3 August 2011, the Commission took formal notice of the withdrawal of the request and again informed the Republic of Poland of the problems relating to the project. The project was completed in 2011 after the withdrawal of the request for confirmation.
6        On 1 August 2013, the Republic of Poland submitted to the Commission a new request for confirmation of the ERDF’s financial contribution to the project. The application for a financial contribution submitted by the Republic of Poland in accordance with Annex XXII to Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Regulation No 1083/2006 and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (OJ 2006 L 371, p. 1) designates the applicant as the ‘organisation responsible for project implementation (beneficiary)’.
7        By letter of 24 June 2014, the Commission expressed doubts regarding the new project proposal. By letter of 28 August 2014, the Republic of Poland replied to the Commission’s observations.
8        On 11 May 2015, on the basis of Article 41(3) of Regulation No 1083/2006, the Commission adopted Decision C(2015) 3228 (‘the contested decision’), by which it refused to grant a financial contribution to the project (Article 1). The contested decision states that any expenditure relating to the project included in a statement of expenditure predating that decision must be rectified in the subsequent statement of expenditure (Article 2). The contested decision is addressed to the Republic of Poland (Article 3).
Procedure and forms of order sought
9        By application lodged at the Court Registry on 22 July 2015, the applicant brought the present action, claiming that the Court should annul the contested decision.
10      By separate document lodged at the Court Registry on 15 October 2015, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, contending that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
11      The applicant lodged its observations regarding the plea of inadmissibility at the Court Registry on 1 December 2015, claiming that the Court should:
–        reject the plea of inadmissibility;
–        declare the action admissible.
12      By document lodged at the Court Registry on 14 December 2015, the Commission applied for the present case to be joined to Case T‑512/14, Green Source Poland v Commission. The applicant lodged its observations regarding the application for joinder at the Court Registry on 8 February 2016. The President of the Fourth Chamber of the General Court decided not to join the two cases at that stage of the procedure.
13      By decision of the President of the General Court, the present case was assigned to a new Judge-Rapporteur sitting in the Seventh Chamber.
14      By documents lodged at the Court Registry on 10 June 2016, the applicant submitted further observations regarding the plea of inadmissibility and asked that that objection be joined to the substance of the case. The President of the Seventh Chamber of the General Court decided not to add those documents to the case file.
15      On a proposal from the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure requested the applicant to lodge a document and put written questions to the parties. The parties replied within the prescribed period.
16      The parties presented oral argument and replied to the oral questions of the Court at the hearing on 24 November 2016.
Law
Preliminary observations
17      It must be borne in mind that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, 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, and against a regulatory act which is of direct concern to him and does not entail implementing measures.
18      Furthermore, according to settled case-law of the Court of Justice, only measures which produce binding legal effects and are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position constitute an act or a decision which may be the subject of an action for annulment (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 20 September 2016, Mallis and Others v Commission and ECB, C‑105/15 P to C109/15 P, EU:C:2016:702, paragraph 51 and the case-law cited).
19      In the present case, it is common ground, on the one hand, that the contested decision does not constitute a regulatory act not entailing implementing measures and, on the other, that the Commission gave notification of the decision to the Republic of Poland, as a result of which the applicant may not be considered to be the addressee of that decision within the meaning of the fourth paragraph of Article 263 TFEU.
20      In those circumstances, it is necessary to ascertain whether the applicant is entitled to bring an action for annulment of that decision on the ground that it is directly and individually concerned by it.
Whether the applicant is directly concerned
21      In the plea of inadmissibility, the Commission submits in particular that the applicant is not directly concerned by the contested decision. It submits essentially that the Member State concerned is the sole addressee of a decision granting, or refusing, as in the present case, a financial contribution from the ERDF to a major project and that that decision does not produce direct legal effects vis-à-vis the applicant.
22      The applicant disputes the plea of inadmissibility and maintains that it is directly concerned by the contested decision. In the observations on the plea of inadmissibility, it claimed that it received public aid and that the direct consequence of the Commission’s negative decision was that on 22 June 2015, it had to repay the total amount of PLN 89 959 304.82 (Polish zloty) (approximately EUR 21 million) to the Polish authorities. At the hearing, the applicant subsequently stated that, in the present case, the Republic of Poland did not even have a theoretical possibility of not recovering that amount and of financing the project itself.
23      It follows from settled case-law that in order to satisfy the requirement that the decision forming the subject matter of the proceedings must be of direct concern to a natural or legal person, two cumulative criteria must be met, namely, first, the contested EU measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see judgment of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 45 and the case-law cited, and order of 9 July 2013, Regione Puglia v Commission, C‑586/11 P, not published, EU:C:2013:459, paragraph 31 and the case-law cited). The second criterion, relating to the lack of discretion of the Member State concerned, is also met where the possibility that it will not give effect to the measure concerned is purely theoretical and its intention to act in conformity with it is not in doubt (see judgments of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 46 and the case-law cited, and of 3 March 2011, Caixa Geral de Depósitos v Commission, T‑401/07, not published, EU:T:2011:72, paragraph 61 and the case-law cited).
24      It is therefore necessary to ascertain whether those two cumulative criteria are met in the present case.
The first criterion of direct concern
25      As regards the first criterion of direct concern referred to in paragraph 23 above, it should first be noted that, in accordance with Article 14(1) of Regulation No 1083/2006, the EU budget allocated to structural funds is implemented within the framework of shared management between Member States and the Commission. Article 59 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) provides that where the Commission implements the budget under shared management, implementation tasks are to be delegated to Member States. In particular, as provided for in Article 180 of Regulation No 966/2012, the management, selection and audit of projects financed by funds under shared management are to be governed by the regulations concerning those funds, namely, in respect of ERDF, by Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the ERDF and repealing Regulation (EC) No 1783/1999 (OJ 2006 L 210, p.1) and by Regulation No 1083/2006.
26      Secondly, therefore, in order to determine the legal effects of the contested decision, account must be taken of the legal framework governing, in particular, the selection of projects, especially major projects financed by the ERDF.
27      To that end, it is clear from the relevant provisions of Regulation No 1083/2006 that:
–        the objectives of the structural funds are to be pursued in the framework of close cooperation, referred to as partnership, between the Commission and each Member State (see Article 11(1) of Regulation No 1083/2006);
–        the funds are to provide assistance which complements national actions and their contributions are not to replace structural expenditure by a Member State (see Article 9(1) and Article 15(1) of Regulation No 1083/2006);
–        each Member State is to present a national strategic reference framework which ensures that assistance from the funds is consistent with the EU strategic guidelines on cohesion and constitutes a reference instrument for preparing the programming of the funds (see Article 27(1) and (2) of Regulation No 1083/2006);
–        in each Member State, the activities of the funds are to take the form of operational programmes drawn up by the Member States and submitted to the Commission for evaluation and adoption (see Article 32(1) to (5) of Regulation No 1083/2006);
–        Member States are responsible for the management and control of operational programmes and, to that end, are to appoint, inter alia, a managing authority, a certifying authority, and may, if they so wish, appoint intermediate bodies to carry out some or all of their tasks, as well as an audit authority (see Article 58, Article 59(1) and (2), and Article 70(1) of Regulation No 1083/2006). The managing authority is responsible for managing and implementing the operational programme and, in particular, ‘ensuring that operations are selected for funding in accordance with the criteria applicable to the operational programme and that they comply with applicable [EU] and national rules for the whole of their implementation period’ (see Article 60(a) of Regulation No 1083/2006);
–        for each operational programme, the Member States are to set up a monitoring committee, which is to satisfy itself as to the effectiveness and quality of the implementation of the operational programme, inter alia by considering and approving the criteria for selecting the operations financed (see Articles 63 and 65 of Regulation No 1083/2006);
–        each operation, namely a project or group of projects intended to achieve the objectives of the operational programme, is selected by the managing authority according to criteria laid down by the monitoring committee (see Article 2(3) of Regulation No 1083/2006);
–        where the Member State selects a major project, that is ‘expenditure comprising a series of works, activities or services intended in itself to accomplish an indivisible task of a precise economic or technical nature, which has clearly identified goals and whose total cost exceeds EUR [50] million’ (see Article 39 of Regulation No 1083/2006), and includes it in an operational programme for funding by the ERDF, it must be approved by the Commission, in order for its purpose and impact, as well as the arrangements for the planned use of EU resources, to be evaluated (see recital 49 of Regulation No 1083/2006):
–        to that end, the major project is to be submitted to the Commission by the Member State or its managing authority, together with the information referred to in Article 40 of Regulation No 1083/2006 (see Article 41(1) of that regulation);
–        the Member State or the managing authority are to submit the request for assistance in accordance with the application scheme (entitled ‘Major project request for confirmation of assistance under Articles 39 to 41 of Regulation … No 1083/2006’) provided for in Annexes XX to XXII to Regulation No 1828/2006 (see Article 40(2)(e) and (3) of that regulation);
–        on the basis of the information contained in that application, the Commission is to appraise the consistency of the major project with the priorities of the operational programme or the relevant programmes, its contribution to achieving the goals of those priorities and its consistency with other EU policies (see Article 41(1) of Regulation No 1083/2006);
–        provided that the application is submitted in accordance with Article 40 of Regulation No 1083/2006, the Commission is to adopt a decision as soon as possible but no later than three months after the submission of a major project (see Article 41(2) of Regulation No 1083/2006) ;
–        the Commission’s decision, where positive, is to define the physical object, the amount to which the co-financing rate for the priority axis applies, and the fund’s contribution plan (see Article 41(2) of Regulation No 1083/2006);
–        where the Commission refuses to make a financial contribution to a major project, it must notify the Member State of its reasons (see Article 41(3) of Regulation No 1083/2006) ;
–        where the Commission refuses to contribute to a major project and the Member State has already included payments for the major project in a statement of expenditure submitted to the Commission, the statement of expenditure following the adoption of the decision must be adjusted accordingly (see Article 78(4) of Regulation No 1083/2006).
28      It follows from all of the above provisions that it is solely in the context of the relations between the Commission and the Member State that operations are conducted by which the Commission assesses and confirms whether or not a Member State is to receive a financial contribution from the ERDF for a major project, take place (see, by analogy, order of 6 March 2012, Northern Ireland Department of Agriculture and Rural Development v Commission, T‑453/10, not published, EU:T:2012:106, paragraph 46).
29      It is clear from the provisions set out in paragraph 27 above that it is the Member State that is responsible for selecting operations to be financed through the ERDF, including major projects; that it is also the Member State which, after having selected a major project for ERDF funding under an operational programme, submits to the Commission a request for confirmation containing the relevant information and which, where necessary, supplements that information; that it is on the basis of that request that the Commission assesses the major project; that the result of the evaluation is sent by the Commission only to the Member State and that, where the Commission refuses to make a contribution to a major project, it is the responsibility of the Member State to rectify the statements of expenditure previously submitted to the Commission containing expenditure relating to the major project. It is therefore to the Member State concerned that the Commission grants a financial contribution from the ERDF for a major project or addresses its refusal to grant such a contribution. Accordingly, the Member State concerned is the holder of the right to the EU financial assistance in question (see, by analogy, order of 9 June 2016, IREPA v Commission and Court of Auditors, T‑825/14, not published, EU:T:2016:345, paragraph 38).
30      This is in line with the fact that, according to case-law, ERDF assistance is intended as a system between the Commission and the Member State (see, to that effect, judgment of 3 March 2011, Caixa General de Depósitos v Commission, T‑401/07, not published, EU:T:2011:72, paragraph 69).
31      Thirdly, it should be borne in mind that, according to settled case-law, in a decision granting EU financial assistance under the ERDF, the designation of an entity as the authority responsible for the implementation of the project does not mean that the entity itself is entitled to such assistance. Nor does the fact that an entity is mentioned as the authority responsible for the request for financial assistance place it in a direct relationship with the EU assistance. Similarly, the fact that an entity is designated as the beneficiary of the financial assistance does not mean that it is entitled to that assistance. It is the Member State, as the addressee of the decision granting ERDF financial assistance, which must be regarded as entitled to such assistance (see, to that effect, judgment of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraphs 47 to 54 and the case-law cited, and order of 14 September 2011, Regione Puglia v Commission, T‑84/10, not published, EU:T:2011:468, paragraph 30 and the case-law cited; see also, by analogy, orders of 21 May 2015, APRAM v Commission, T‑403/13, not published, EU:T:2015:317, paragraphs 36 and 62 and the case-law cited, and of 9 June 2016, IREPA v Commission and Court of Auditors, T‑825/14, not published, EU:T:2016:345, paragraphs 38 to 40 and the case-law cited).
32      It follows from the case-law referred to in paragraph 31 above that, in the present case, it is the Republic of Poland, not the applicant, that must be regarded as entitled to ERDF assistance for the project.
33      Fourthly, it should be recalled that, in the present case, in accordance with the provisions set out in paragraph 27 above, it was indeed the Republic of Poland that submitted to the Commission a request for an ERDF contribution for the project on 1 August 2013 (see paragraph 6 above).
34      In addition, by the contested decision, the Commission addressed its refusal to make a financial contribution to the Republic of Poland (see paragraph 8 above). On the one hand, Article 3 of the contested decision designates the Republic of Poland as the sole addressee of that decision. On the other, the effect of Article 1 of the contested decision, as a result of its refusal to grant an ERDF contribution, is to prevent the Republic of Poland from being able to charge to the ERDF any expenditure it may have incurred relating to the project. Consequently, Article 2 of the contested decision requires the Republic of Poland to rectify any expenditure relating to the project which was previously submitted to the Commission in a statement of expenditure prior to that decision.
35      Accordingly, under the contested decision, it is the Republic of Poland which has been denied a financial contribution from the ERDF to fund the project and which must rectify any expenditure relating to that project previously submitted to the Commission.
36      In those circumstances, it must be held that the contested decision does not have any effect on the applicant’s legal situation and that, consequently, the first criterion of direct concern is not fulfilled in the present case.
The second criterion of direct concern
37      As regards the second criterion of direct concern referred to in paragraph 23 above, it should be recalled that there is no direct concern where the autonomous will of the addressee interposes itself between the decision and its effects on the applicant. Where the decision of the addressee is not legally required either by EU law or the specific Commission decision, but is based on an autonomous decision of the Member State, there is no direct connection between the Commission decision and the applicant (see order of 6 March 2012, Northern Ireland Department of Agriculture and Rural Development v Commission, T‑453/10, not published, EU:T:2012:106, paragraph 54 and the case-law cited).
38      It must be borne in mind that, in the present case, Article 1 of the contested decision has the effect of denying the Republic of Poland a contribution from the ERDF for the project. That provision therefore implies that any expenditure by the Republic of Poland relating to that project will not be covered by the ERDF.
39      Article 2 of the contested decision, in accordance with Article 78(4) of Regulation No 1083/2006, requires the Republic of Poland to rectify the statements of expenditure previously submitted to the Commission which contain expenditure relating to the project.
40      In those circumstances, the implementation of the contested decision by the Republic of Poland simply requires, on the one hand, that such expenditure should not be declared to the Commission and, on the other, that if that expenditure has already been declared to the Commission in a statement of expenditure prior to the contested decision, the following statement of expenditure should be adjusted accordingly.
41      It is therefore clear that the implementation of the contested decision by the Republic of Poland does not entail, either by virtue of the contested decision itself or of the provisions of EU law intended to govern its effect, any consequences for the applicant, its effects being confined to relations between the Union, in particular the ERDF, and the Republic of Poland.
42      Thus, the contested decision does not prevent the applicant from proceeding with the project or the Republic of Poland from funding it with financial resources other than those from the ERDF. Similarly, the contested decision does not require the Republic of Poland to terminate the contract or recover any sums which it might have paid to the applicant for the implementation of the project.
43      In paragraph 84 of the Opinion of Advocate General Ruiz-Jarabo Colomer in Regionale Siciliana v Commission (C‑417/04 P, EU:C:2006:28), in the absence of an ERDF contribution, it was noted that:
‘It is ... for the ... Member State concerned to determine the future of what is really its own project. It has several options: it can, for example, abandon the project, suspend it or transfer it; on the other hand, it can defray the financial cost out of its own budgets in order to ensure that the project is completed. Although the [refusal of a contribution is not without drawbacks], by [refusing the contribution], the Commission does not prejudge, pre-empt or recommend the direction which the Member State must take in determining the future of its plans for territorial development.’
44      In those circumstances, it must be held that no direct repercussions for the applicant as a result of the contested decision under EU law or of the decision itself and that, accordingly, the second criterion of direct concern is not fulfilled in the present case.
45      The findings set out in paragraphs 36 and 44 above on the two criteria for direct concern are not called into question by the applicant’s arguments.
46      First, in its observations on the plea of inadmissibility, the applicant claimed that, as a result of the contested decision, it had to repay to the Polish authorities the public aid received for the implementation of the project.
47      As noted in paragraphs 38 to 42 above, it is clear that that obligation to repay arises neither from the contested decision itself nor from the provisions of EU law intended to govern its effects, but is one of the consequences which, within the framework of the contract, the Polish authorities and the applicant attributed to that decision. It is Article 5(12) and (14) of the contract which provides for its termination in the event of a negative decision by the Commission in response to the request for confirmation and, in that case, imposes the obligation on the applicant to repay the funds already received from the Polish authorities, including those not from the ERDF. Accordingly, the consequences and obligations flowing from the contract are interposed between the applicant’s legal position and the contested decision (see, by analogy, order of 6 June 2002, SLIM Sicilia v Commission, T‑105/01, EU:T:2002:147, paragraph 53).
48      Furthermore, in that regard, contrary to what the applicant alleged at the hearing, those contractual clauses do not reflect the wording of Article 78(4) of Regulation No 1083/2006, which does not relate, in the event of a negative decision, to the recovery of the sums advanced by the Member State to the person responsible for project implementation, but to the rectification of the statements of expenditure submitted to the Commission by the Member State. Thus, the effects of that provision remain limited to relations between the Commission and the Member State and do not relate to relations between the Member State and the entity responsible for implementing the project, which, in the present case, are governed independently by the contract.
49      Secondly, at the hearing, the applicant put forward five objective facts allegedly showing that the Republic of Poland did not even have a theoretical possibility of not recovering that amount or of financing the project itself.
50      As regards the presence of the contractual clauses referred to in paragraph 47 above, it should be noted that those clauses do not make it possible to conclude that the Polish authorities had no discretion under the contested decision.
51      First of all, in so far as such an argument is based on the claim that it is the contract, rather than EU rules, that does not allow for any discretion, it is based on an erroneous reading of the case-law cited in paragraphs 23 and 37 above, according to which it is specifically EU law that must afford no discretion (see, to that effect, order of 14 September 2011, Regione Puglia v Commission, T‑84/10, not published, EU:T:2011:468, paragraph 50 and the case-law cited).
52      Next, it should be observed that the very fact that the Polish authorities and the applicant had decided to terminate the contract in the event that ERDF assistance were refused, and to lay down, in that case, an obligation for the applicant to reimburse the funds already received from the Polish authorities constitutes an expression of the existence of their autonomous will, in the absence of any obligation arising in that respect under EU law (see, by analogy, judgment of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 56). Finally, if the mere existence of such a clause was sufficient to establish the direct concern required by the fourth paragraph of Article 263 TFEU, that would be tantamount, on the one hand, to allowing the parties to such a contract to decide whether or not the person concerned had standing before the EU courts (see, to that effect, orders of 14 September 2011, Regione Puglia v Commission, T‑84/10, not published, EU:T:2011:468, paragraph 52, and of 21 May 2015, APRAM v Commission, T‑403/13, not published, EU:T:2015:317, paragraph 49) and, on the other, to assessing differently the situation of a person allegedly concerned by a Commission decision according to whether or not it had concluded such a contract with the national authorities in accordance with the practices existing in each Member State.
53      As regards the fact that, in the present case, the Polish authorities did indeed seek and obtain reimbursement of the sums advanced to the applicant, it should be observed that that circumstance does not, as such, mean that the Republic of Poland had no discretion or did not exercise it but that, in the exercise of its discretion, it decided, in the absence of ERDF funding, not to finance the project with other resources.
54      As regards the fact that the applicant did not start the project until it received financial support from the Polish authorities, it should be observed, first, that, as it relates to the funding provided by the Polish authorities, that argument does not demonstrate that the applicant was directly affected by the contested decision and, second, that, in the present case, the project was completed by the applicant in 2011, after the Republic of Poland’s withdrawal of the first request for a contribution and well before the contested decision was adopted by the Commission on 11 May 2015.
55      As regards the claim that the Commission participated in the selection of the applicant’s project within the framework of the monitoring committee for the operational programme, it should be noted, first, that under Article 65 of Regulation No 1083/2006, the monitoring committee does not have the task of selecting individual operations but simply of examining and approving the selection criteria for an operational programme, with the selection of operations being a matter for the managing authority; next, that, under Article 64(2) of Regulation No 1083/2006, while it is true that a representative of the Commission may participate in the work of the monitoring committee, he may do so only in an advisory capacity and, finally, that, in any event, it is not apparent from the document relied on by the applicant in support of its argument, namely the statement of evaluation of the Polish Ministry of the Economy of 10 October 2008 annexed to the application, that the Commission contributed in any way to the selection of the project by the Polish authorities.
56      Regarding, finally, the argument that the Republic of Poland is not free to allocate other funds from the national budget to the project, it should be noted that, even if that were established, that argument is also based, in the light of the case-law referred to in paragraph 51 above, on an erroneous reading of EU law, in so far as it is based on the claim that it is national law, not EU rules, that does not afford any discretion.
57      Thirdly, the case-law relied on by the applicant at the hearing in support of the argument that the Polish authorities lack discretion, namely the judgments of 23 November 1971, Bock v Commission (62/70, EU:C:1971:108), of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), of 5 May 1998, Dreyfus v Commission (C‑386/96 P, EU:C:1998:193), of 5 May 1998, Compagnie Continentale (France) v Commission (C‑391/96 P, EU:C:1998:194), and of 5 May 1998, Glencore Grain v Commission (C‑403/96 P, EU:C:1998:195), is not applicable in the present case.
58      It must be borne in mind that the Court of Justice itself has held that the solution adopted in those judgments is of an exceptional nature, which may be explained by the specific situations in which it was reached and that this is apparent from the very terms of those judgments (see, to that effect, order of 6 March 2014, Northern Ireland Department of Agriculture and Rural Development v Commission, C‑248/12 P, not published, EU:C:2014:137, paragraphs 23 and 26). Thus, the Court stated that it was by way of exception that it had held that the applicant could be directly concerned, within the meaning of the fourth paragraph of Article 263 TFEU, since other factors, including a purely theoretical power to refrain from acting on the decision in question, made it possible to conclude that it was directly concerned (see, to that effect, judgment of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 58, and order of 6 March 2014, Northern Ireland Department of Agriculture and Rural Development v Commission, C‑248/12 P, not published, EU:C:2014:137, paragraph 25).
59      In addition, the present case is not characterised by a factual and economic context in which, without the ERDF contribution, the applicant would have no real possibility of proceeding with the project or of having the resources necessary for that purpose, since the ERDF contribution is far from being the only source of funding for the project and since, on the contrary, it is apparent from recital 6 of the contested decision that some 75% of it was financed by private funds and approximately 4% of it by other funds of the Member State concerned.
60      Fourthly, the applicant argued at the hearing that the case-law referred to in paragraph 31 above is not applicable in the present case on the ground that it concerned entities which were not beneficiaries of ERDF assistance, whose connection with that aid is therefore more indirect than for the beneficiary. That argument cannot be upheld, since that case-law specifically establishes that the fact that an entity is designated as the recipient of financial assistance is not such as to distinguish it from the other entities covered by that case-law and does not mean that it is entitled to such assistance (see, to that effect, judgment of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 54; see also, by analogy, orders of 21 May 2015, APRAM v Commission, T‑403/13, not published, EU:T:2015:317, paragraph 62, and of 9 June 2016 in IREPA v Commission and Court of Auditors, T‑825/14, not published, EU:T:2016:345, paragraph 40). Moreover, according to the applicant, that case-law is not applicable because it relates to cases in which reimbursement of the sums paid had not yet been requested or in which there was no obligation to request it, whereas, in the present case, the Republic of Poland has requested that the funds be repaid and was obliged to do so under the contract. Those arguments cannot be upheld either, since in the present case, as indicated in paragraphs 47 and 48 above, the obligation on the applicant to repay the sums in question does not arise from the contested decision or from EU law, but simply from the contract.
61      Fifthly, with regard to the argument relied on by the applicant at the hearing that it is not entitled to bring a claim against the Member State and should therefore be considered to be directly concerned by the contested decision, it should be borne in mind that, although individuals are entitled to effective judicial protection of the rights they derive from the Union legal order, invoking the right to such protection cannot, in any event, call into question the conditions laid down in the fourth paragraph of Article 263 TFEU. In accordance with settled case-law, the judicial protection of natural or legal persons who are unable, by reason of the conditions for admissibility provided for in the fourth paragraph of Article 263 TFEU, directly challenge Union acts of the type at issue here must be guaranteed effectively by a right of action before national courts. In accordance with the principle of sincere cooperation enshrined in Article 4 TFEU, national courts are required to interpret and apply, as far as possible, the domestic procedural rules governing the exercise of rights of action in a manner which will enable those persons to challenge before the courts the legality of any decision or other national measure relating to the application to them of a Union act, such as that in question, by pleading that the latter is invalid and asking them to make a reference to the Court of Justice for a preliminary ruling on validity (see, to that effect, judgment of 10 September 2009, Commission v Ente per Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraphs 65 and 66 and the case-law cited, and order of 9 June 2016, IREPA v Commission and Court of Auditors, T‑825/14, not published, EU:T:2016:345, paragraphs 48 and 49 and the case-law cited).
62      In the present case, in accordance with the applicable national law, the applicant could, in particular, have objected, before the competent national court, to the termination of the contract or the reimbursement requested by the Polish authorities under that contract, by pleading that the contested decision triggering those requests was invalid. The applicant could have thus induced the national court to refer a question to the Court of Justice for a preliminary ruling on the validity of the contested decision.
63      The fact relied on by the applicant that the Polish authorities are themselves challenging the contested decision, which is indeed the subject of an action brought by the Republic of Poland before the General Court, does not mean that the applicant, in accordance with the applicable national law, could not have resisted the termination of the contract or the reimbursement sought by the Polish authorities under that contract.
64      In any event, it must be noted that the requirement of effective judicial protection cannot have the effect of setting aside the condition of direct concern laid down by the fourth paragraph of Article 263 TFEU (see order of 9 June 2016, IREPA v Commission and Court of Auditors, T‑825/14, not published, EU:T:2016:345, paragraph 50 and the case-law cited).
65      In the light of the foregoing, since the two criteria mentioned in paragraph 23 above are not fulfilled, the applicant is not directly affected by the contested decision, which affects only legal relations between the Commission and the Republic of Poland.
66      It must therefore be concluded that the applicant does not satisfy one of the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU, namely that relating to direct concern, as a result of which it is not necessary to examine whether the applicant is individually concerned by the contested decision.
67      Therefore, the present action must be dismissed as inadmissible.
Costs
68      Under Article 134(1) 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.
On those grounds,
THE GENERAL COURT (Seventh Chamber),
hereby:
1.      Dismisses the action as inadmissible;
2.      Orders JYSK sp. z o.o. to bear its own costs and to pay those incurred by the European Commission.
Van der Woude
Ulloa Rubio
Marcoulli
Delivered in open court in Luxembourg on 4 May 2017.
E. Coulon
Registrar
President
*Language of the case: English.