Opinion of Mr Advocate General Jacobs delivered on 20 January 2000. - Ca' Pasta Srl v Commission of the European Communities. - Appeal - Regulation (EEC) No 4028/86 - Community financial aid - Procedure for discontinuing the aid - Suspension of payment of the aid originally granted - Actionable measure. - Case C-359/98 P.



European Court reports 2000 Page I-03977



Opinion of the Advocate-General

1. This is an appeal by an Italian company, Ca'Pasta, against an order of the Court of First Instance rejecting its application to that Court as inadmissible. That application challenged a letter from the Commission concerning aid granted to Ca'Pasta under Council Regulation (EEC) No 4028/86 of 18 December 1986 on Community measures to improve and adapt structures in the fisheries and aquaculture sector.

2. That regulation provided for financial assistance by the Community for various projects in that sector. Financial contributions were also to be made by the Member States. Article 44 of the regulation provided that the Commission could, in accordance with the procedure laid down in Article 47, decide to suspend, reduce or discontinue aid if certain conditions imposed were not satisfied.

3. The Commission granted Ca'Pasta financial assistance for an aquaculture project at Contarina, Veneto, amounting to 40% of the cost of the project. In addition Italy undertook to finance 30% of the cost.

4. Subsequently the Commission informed Ca'Pasta of its intention to set in motion the procedure for discontinuing the aid and for recovering the amount already paid. After receiving Ca'Pasta's observations, the Commission, by letter of 4 August 1997, informed Ca'Pasta that the Commission's services were pursuing the internal procedure with a view to discontinuing the aid and recovering the amount already paid.

5. It is that letter which was challenged by Ca'Pasta before the Court of First Instance, which, by order of 16 July 1998, rejected the application as inadmissible on the ground that the letter was not a measure which could be the subject of an action for annulment under Article 173 of the EC Treaty (now Article 230 EC).

6. In its order the Court of First Instance pointed out that, according to the case-law, any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 173 for a declaration that it is void.

7. In the case of acts or decisions drawn up in a procedure involving several stages, and particularly at the end of an internal procedure, it is only those measures which definitively determine the position of the institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision.

8. The Court of First Instance continued:

In the letter at issue, the Commission informed the applicant of the "continuation of the internal procedure with a view to cancelling the contribution [granted to the applicant] and recovering the amount already paid". That wording shows clearly that the Commission had not yet taken a final decision on the discontinuance of the financial aid granted to the applicant, but that it was preparing such a decision. The letter is therefore not a measure which produces binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in his legal position ... As the Commission rightly maintains, it is merely a letter providing information. As to the adverse effects which the applicant claims to suffer as a result of the procedure pending before the Commission ..., they are merely the logical consequence of the commencement of that procedure. Even if, as in the present case, the Commission adopts temporary measures in the context of that procedure, such effects do not indicate the existence of a measure which produces binding legal effects such as to affect the interests of the applicant. It follows that the letter at issue is not a measure capable of forming the subject-matter of an action under Article 173 of the Treaty.

9. In its appeal Ca'Pasta asks the Court of Justice not only to quash the order of the Court of First Instance but also to annul the Commission's alleged decision. The latter plea is plainly inadmissible. As the Commission points out, the Court of Justice cannot on an appeal examine the substance of the case where the Court of First Instance has not done so.

10. Ca'Pasta challenges the order of the Court of First Instance on two grounds. First, it maintains that the contested letter contained a definitive decision, and advances three arguments.

11. First, it argues that there was an (implied) decision not to pay the second and the final parts of the aid. That argument seems to me contrary to the clear terms of the letter, which speaks of the continuation of the procedure with a view to cancelling the contribution and recovering the amount already paid. The letter cannot in my view be read as containing an implied decision of the kind alleged.

12. Secondly, Ca'Pasta contends that the letter resulted in the suspension of both the Community and the national contribution throughout the procedure initiated by the Commission and thus must be regarded as a measure open to challenge. However, as the Commission points out, those effects do not mean that the letter had any binding legal effect. An action for annulment can lie only where there is an act or measure to annul; the mere provision of information cannot be annulled, and since the letter remains an essentially informative document it is not susceptible to challenge.

13. Thirdly, Ca'Pasta alleges that the procedure laid down by Article 47 of the regulation, since it does not require the Commission when it adopts measures to take account of a negative opinion of the Standing Committtee for the Fishing Industry, is in effect weighted in favour of the Commission, so that the Commission's letter constituted the taking of a stance which in practice could not be changed. On that point, however, Article 47 provides that the Commission is to submit a draft of the measure to be taken to the Standing Committee and that if the proposed measure is not in accordance with the Committee's opinion the Council may adopt different measures.

14. Ca'Pasta adds in effect that it is all the more important that it should be able to challenge the Commission's letter in the light of the Court's case-law holding inadmissible actions to annul a measure which merely confirms an earlier decision not challenged within the time-limits. That argument however is misconceived: if the Commission's letter is, as the Court of First Instance has ruled and as the Court of Justice should in my view confirm, not itself a decision, then clearly the decision ultimately taken cannot merely confirm an earlier decision.

15. None of the arguments advanced in support of the first ground can be regarded, therefore, as well founded.

16. Ca'Pasta's second ground is that the order is inadequately reasoned and contradictory. However the order does in my view adequately explain the reasons which led the Court of First Instance to conclude that the contested letter did not constitute a definitive decision: see the extract from the order set out in paragraph 8 above.

17. Ca'Pasta contends that the Court of First Instance did not correctly analyse the letter as a measure susceptible to challenge in view of the seriousness of the consequences and cites the Opinion of Advocate General La Pergola in Commission v Lisrestal and Others in support of its complaint: as the Court has already had occasion to observe, the reduction or suspension of assistance already granted, or the repayment to the Member State of sums initially granted, are measures which are objectively more serious, in view of their consequences for the rights of the persons directly concerned, than the initial refusal to grant the assistance sought. Such measures run counter to the legitimate expectations of the person concerned with regard to the conduct of his business. That case, however, related to a formal decision.

18. Ca'Pasta's arguments to the effect that the letter had adverse consequences may be well founded, but the possible existence of such consequences cannot obviate the need for a definitive decision before a measure can be subject to judicial review. As the Commission points out, if a letter informing a person that a procedure was under way could be challenged, that would not only be contrary to the established case-law but would prejudice legal certainty and would obstruct the administrative functions of the Commission.

19. It is therefore appropriate, in my view, in cases such as the present one that only definitive decisions can be subject to judicial review, and not intermediate or preparatory decisions. Moreover, in the present case it might well be thought that there was not even an intermediate decision, but only the provision of information that a procedure was being continued which was liable to result in a decision.

Conclusion

20. For the above reasons, the Court should in my opinion:

(1) dismiss the appeal;

(2) order Ca'Pasta to pay the costs.