EN Official Journal of the European Union C 19/18

Appeal brought on 20 November 2008 by Município de Gondomar against the order made by the Court of First Instance (Fourth Chamber) on 10 September 2008 in Case T-324/06 Município de Gondomar v Commission

(Case C-501/08 P)

(2009/C 19/32)

Language of the case: Portuguese

Parties

Appellant: Município de Gondomar (represented by J.L. da Cruz Vilaça and L. Pinto Monteiro, advogados)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— A decision setting aside the order of the Court of First Instance and declaring admissible the action for annulment of Commission Decision C(2006) 3782 of 16 August 2006 on the cancellation of the financial assistance granted by the Cohesion Fund;

— alternatively, a decision setting aside the order of the Court of First Instance and ordering the case to be referred back to the Court of First Instance for it to give another decision;

— an order that the European Commission should pay all the costs including the appellant's, pursuant to Article 69 of the Rules of Procedure of the Court of Justice or, alternatively, that the decision as to costs should be reserved to the judgment or order closing the proceedings.

Pleas in law and main arguments

1. ERROR OF LAW IN THE ASSESSMENT OF THE CONDITION OF DIRECT CONCERN AND FAILURE TO STATE GROUNDS

The Município de Gondamar considers that the Portuguese legal order includes special features that ought to lead to an interpretation other than that made by the Court of First Instance in its order in Case T-324/06 declaring the action inadmissible, which is marred by errors of law.

It is clear from the Portuguese legislation, in particular from Articles 18 and 20 of the Regulation giving effect to the Cohesion Fund in Portugal, approved by the single article of Decree-Law No 191/2000 of 16 August 2000, that the Portuguese Republic enjoys no latitude at all in deciding whether or not to maintain the assistance allocated by the Cohesion Fund to the Município de Gondamar as the body responsible for the execution of the project, leading thus to the conclusion that the Commission's decision to cancel the aid granted by the Cohesion Fund is of an automatic nature, for the legislation concerned does not permit the bodies responsible for performance to be relieved of the duty to reimburse the sums overpaid.

The Court of First Instance, in its order in Case T-324/06 declaring the action inadmissible, refrained from making any reference to that question and so, the latter being an essential point for the purpose of determining whether the action is admissible, the Court of First Instance erred in law, with immediate effects on the exercise of the procedural rights conferred by Article 230 EC.

As a result of that failure to rule on the matter, the order is vitiated because the statement of grounds is lacking or defective. In accordance with Community case-law and legal writings, there is a general duty to state the reasons for the decisions made by administrative and judicial bodies, so as to make it easier for the Court of Justice to perform its task of judicial review.

The Court of First Instance's failure to give a decision concerning the special features of the Portuguese legal order constitutes a failure to state the grounds capable of seriously affecting the appellant's interests.

2. BREACH OF THE PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION

The Município de Gondamar further considers that it runs the risk of being denied its right to effective judicial protection, for want of means of obtaining redress at the domestic level by which it might challenge the demand for reimbursement of the financial assistance granted by the Cohesion Fund, given that the measure notifying it of the Commission's decision to cancel the financial assistance granted by the Cohesion Fund is not a measure actionable under domestic law.

The communication of the Commission's decision, unactionable at domestic level, was made by letter of the sectorial management body for the Cohesion Fund of the Ministry of the Environment, dated 25 September 2006, that letter doing no more than ‘notify’ the Commission's decision, the latter being the act with operative content.

The lack of any means of redress is contrary to the principle of the right to effective judicial protection, as recognised in the most recent Community case-law and legal writings.