EN Official Journal of the European Union C 86/14

Appeal brought on 31 January 2013 by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) delivered on 21 November 2012 in Case T-270/08 Federal Republic of Germany v European Commission

(Case C-54/13 P)

2013/C 86/22

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: T. Henze, acting as Agent, C. von Donat and J. Lipinsky, Rechtanwälte)

Other parties to the proceedings: European Commission, Kingdom of Spain, Kingdom of the Netherlands, French Republic

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of the European Union of 21 November 2012 in Case T-270/08 Federal Republic of Germany, Kingdom of Spain (intervener), French Republic (intervener), Kingdom of the Netherlands (intervener) v European Commission, concerning the annulment of Commission Decision C(2008) 1615 final of 29 April 2008 reducing the financial contribution under the European Regional Development Fund (ERDF) initially granted for the Operational Programme falling under Objective 1 (1994-1999) for Berlin (East) in the Federal Republic of Germany, and annul the aforementioned decision of the Commission;

— order the Commission to pay the costs of the proceedings.

Grounds of appeal and main arguments

The appellant relies on four grounds in support of its appeal.

First ground of appeal: The General Court infringed Article 24(2) of Regulation No 4253/88 (1) in conjunction with Article 1 of Regulation No 2988/952 (2) and the principle of conferred powers (formerly Article 5 EC, now Article 5(2) EU, Article 7 TFEU), since, in the judgment under appeal, it made an error of law in assuming that a purely administrative error on the part of the national authorities constitutes an ‘irregularity’, which entitles the Commission to reduce financial assistance under Article 24(2) of Regulation No 4253/88.

Second ground of appeal: The General Court infringed Article 24(2) of Regulation No 4253/88 in conjunction with the principle of conferred powers (Article 5(2) EU, Article 7 TFEU), as it unlawfully authorised the Commission to make financial corrections by way of extrapolation (first part of the second ground of appeal). However, even if it could be inferred from Article 24(2) of Regulation No 4253/88 that the Commission is authorised to make reductions by way of extrapolation, the General Court wrongly approved the way in which that extrapolation was carried out in the present case. First, the Commission cannot systematically deem the error complained of to apply to the entire operational programme and extrapolate the resulting erroneous rate to the entire programme. Second, the Commission was not able to apply the samples which it used to reduce the financial contribution for the entire programme by means of extrapolation (second part of the second ground of appeal). Moreover, through the extrapolation of unrepresentative errors and flat-rate corrections, the Commission made disproportionate reductions in the financial contribution to the operational programme (third part of the second ground of appeal).

Third ground of appeal: The judgment under appeal also infringes Article 24(2) of Regulation No 4253/88 in conjunction with the principle of conferred powers, since the General Court appears to have wrongly assumed that the Commission was authorised to make a flat-rate correction (first part of the third ground of appeal). Even if the Commission had such authority to make a flat-rate correction, the General Court would still have been in error in accepting the Commission’s disproportionate flat-rate correction in the present case (second part of the third ground of appeal).

Fourth ground of appeal: Finally, the General Court infringed the duty to provide grounds for its decisions, laid down in Article 81 of the Rules of Procedure of the General Court in conjunction with Articles 36 and 53(1) of the Statute of the Court of Justice, since it is not apparent from the grounds for the judgment under appeal that the General Court addressed the appellant’s claims relating to the inadmissibility of flat-rate financial corrections (first part of the second ground of appeal) or the reasons for rejecting those claims are not apparent.

(1) 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).

(2) Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).