Judgment of the General Court (Third Chamber) of 21 November 2012 — Germany v Commission

(Case T-270/08)

‛ERDF — Reduction in financial assistance — Operational programme falling under Objective No 1 (1994-1999) for Berlin (East) (Germany)’

1. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Irregularity — Concept — Errors by national authorities — Included (Council Regulation No 4253/88, Art. 24(2)) (see paras 24-28, 31, 32)

2. Economic, social and territorial cohesion — Structural assistance — EU financing — Suspension or reduction of financial assistance granted for a national project — Procedure distinct from and independent of an action for failure to fulfil obligations (Art. 258 TFEU; Council Regulation No 4253/88, Art. 24) (see para. 29)

3. Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Awarding authorities — Body governed by public law — Concept — Functional interpretation (Council Directive 92/50, Art. 1(b)) (see paras 47, 49)

4. Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Scope — Subcontracting contracts — Included — Award of a service contract within a group without a fresh invitation to tender — Not permissible (Council Directive 92/50) (see paras 51-54)

5. Economic, social and territorial cohesion — Structural assistance — EU financing — In-depth check of whether a recipient of Community assistance has complied with its financial obligations — No obligation on the Commission to undertake a new investigation (Council Regulation No 4253/88) (see para. 62)

6. Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Absence — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 80)

7. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Calculation of the amount of the reduction — Criteria — Discretion of the Commission — Limits — Observance of the principle of proportionality (Council Regulation No 4253/88, Art. 24(2)) (see paras 95, 96, 99-101, 106, 107, 128-131, 140)

8. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Irregularity — Burden of proof — Scope (Council Regulation No 4253/88, Art. 24(2)) (see paras 102-105)

9. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision concerning reduction of ERDF financial assistance on account of irregularities (Art. 296, second para., TFEU; Council Regulation No 4253/88, Art. 24) (see paras 146-148)

Re:

APPLICATION for 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.

Operative part

The Court:

1. Dismisses the action;

2. Orders the Federal Republic of Germany to bear its own costs and pay those incurred by the European Commission;

3. Orders the Kingdom of Spain, the French Republic and the Kingdom of the Netherlands to bear their own costs.

Judgment of the General Court (Third Chamber) of 21 November 2012 — Germany v Commission

(Case T-270/08)

‛ERDF — Reduction in financial assistance — Operational programme falling under Objective No 1 (1994-1999) for Berlin (East) (Germany)’

1. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Irregularity — Concept — Errors by national authorities — Included (Council Regulation No 4253/88, Art. 24(2)) (see paras 24-28, 31, 32)

2. Economic, social and territorial cohesion — Structural assistance — EU financing — Suspension or reduction of financial assistance granted for a national project — Procedure distinct from and independent of an action for failure to fulfil obligations (Art. 258 TFEU; Council Regulation No 4253/88, Art. 24) (see para. 29)

3. Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Awarding authorities — Body governed by public law — Concept — Functional interpretation (Council Directive 92/50, Art. 1(b)) (see paras 47, 49)

4. Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Scope — Subcontracting contracts — Included — Award of a service contract within a group without a fresh invitation to tender — Not permissible (Council Directive 92/50) (see paras 51-54)

5. Economic, social and territorial cohesion — Structural assistance — EU financing — In-depth check of whether a recipient of Community assistance has complied with its financial obligations — No obligation on the Commission to undertake a new investigation (Council Regulation No 4253/88) (see para. 62)

6. Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Absence — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 80)

7. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Calculation of the amount of the reduction — Criteria — Discretion of the Commission — Limits — Observance of the principle of proportionality (Council Regulation No 4253/88, Art. 24(2)) (see paras 95, 96, 99-101, 106, 107, 128-131, 140)

8. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Irregularity — Burden of proof — Scope (Council Regulation No 4253/88, Art. 24(2)) (see paras 102-105)

9. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision concerning reduction of ERDF financial assistance on account of irregularities (Art. 296, second para., TFEU; Council Regulation No 4253/88, Art. 24) (see paras 146-148)

Re:

APPLICATION for 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.

Operative part

The Court:

1. Dismisses the action;

2. Orders the Federal Republic of Germany to bear its own costs and pay those incurred by the European Commission;