OPINION OF ADVOCATE GENERAL

MISCHO

delivered on 10 July 2003 ( )

Joined Cases C-199/01 P and C-200/01 P

IPK-München GmbH

v

Commission of the European Communities

(Appeal – Decision of the Commission refusing to pay the balance of financial assistance – Misappraisal of the subject-matter of the dispute – Infringement of the obligation to state reasons – Infringement of the binding effect of the Court’s judgment – Procedural irregularities)

1. By application lodged at the Registry of the Court of Justice on 14 May 2001, IPK-München GmbH (‘IPK’), in Case C-199/01 P, and the Commission of the European Communities in Case C-200/01 P, each brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance (Third Chamber) of 6 March 2001 in Case T-331/94 IPK-München v Commission [2001] ECR II-779 (‘the judgment under appeal’). By the judgment under appeal, the Court of First Instance annulled the Commission’s decision of 3 August 1994 refusing to pay IPK the balance of financial assistance granted to support a project to create a database of information on ecological tourism in Europe (‘the decision’).

2. By order of the President of the Court of 15 October 2001, the two cases were joined for the purposes of the written and oral procedures and the judgment.

I – The facts giving rise to the appeals

3. The legal background and the facts giving rise to the appeals are set out in the judgment under appeal as follows:

‘Facts

1. On 26 February 1992 the Commission published in the Official Journal of the European Communities a call for proposals with a view to supporting projects in the field of tourism and the environment (OJ 1992 C 51, p. 15). It stated that it intended to allocate a total of ECU 2 million to that programme and to select about 25 projects. The call for proposals also stated that projects selected should be completed within one year after signature of the contract.

2. On 22 April 1992 the applicant, an undertaking established in Germany and active in the field of tourism, submitted a proposal to the Commission concerning the creation of a databank on ecological tourism in Europe. That databank was to be called “Ecodata”. The proposal specified that the applicant was to be responsible for coordinating the project and that, in order to carry out the work, it would be assisted by three partners, namely the French undertaking, Innovence, the Italian undertaking, Tourconsult, and the Greek undertaking, 01-Pliroforiki. The proposal did not specify how tasks would be distributed between those undertakings, but merely stated that they were all “consultants specialised in tourism, as well as in information- and tourism-related projects”.

3. The applicant’s proposal specified that it would take a total of 15 months to carry out the project, which was divided into seven phases.

4. In a letter dated 4 August 1992 the Commission granted ECU 530 000 in aid to the Ecodata project, which represented 53% of the cost of the project, and requested the applicant to sign and return the “declaration by the beneficiary of the aid” (hereinafter “the declaration”), which was annexed to that letter and contained the conditions for receipt of the aid.

5. The declaration stipulated in particular that 60% of the total amount of aid would be paid when the Commission received the declaration, duly signed by the applicant; the balance was to be paid when the Commission had received and accepted the reports on the performance of the project, namely an interim report to be submitted within three months of the project commencing and a final report, accompanied by accounts, to be submitted within three months of completion of the project and by 31 October 1993 at the latest.

6. The declaration was signed by the applicant on 23 September 1992 and was received at the Directorate-General for enterprise policy, trade, tourism and social economics (DG XXIII) at the Commission on 29 September 1992.

7. By letter of 23 October 1992 the Commission informed the applicant that it expected to receive the first report by 15 January 1993. In the same letter, the Commission also asked the applicant to submit two additional interim reports by 15 April and 15 July 1993. Finally, it repeated that the final report was to be presented by 31 October 1993 at the latest.

8. The applicant was also asked to agree to the participation in the project of a German undertaking, Studienkreis für Tourismus (“Studienkreis”). The Commission had paid Studienkreis a subsidy of ECU 60 000 in 1991 to set up an ecological tourism project called “Ecotrans”.

9. On 18 November 1992, Mr von Moltke, the Director-General of DG XXIII, thinking that the applicant had still not sent back the declaration, sent the applicant a further copy, which he asked it to sign and return to him.

10. On 24 November 1992, Mr Tzoanos, Head of Division within DG XXIII, invited the applicant and 01-Pliroforiki to a meeting, which took place in the absence of Innovence and Tourconsult. Mr Tzoanos is alleged to have required during that meeting that the majority of the work and the funds be allocated to 01-Pliroforiki. The applicant objected to that requirement.

11. The first tranche of the aid, namely ECU 318 000 (60% of the total subsidy of ECU 530 000), was paid in January 1993.

12. Studienkreis’ participation in the project was discussed at a meeting which took place at the Commission on 19 February 1993. The minutes of the meeting state:

“Representatives of [the applicant], the three partners of Ecotrans [Studienkreis] will meet in Rome on Saturday 13 March in order to ... agree an implementation plan involving all five organisations. [The applicant] will report on the outcome of the meeting to the Commission on Monday 15 March”.

13. A few days after the meeting on 19 February 1993, the Ecodata project case was withdrawn from Mr Tzoanos. A disciplinary procedure was subsequently initiated against Mr Tzoanos, which resulted in his dismissal.

14. In the end, Studienkreis did not take part in the Ecodata project. On 29 March 1993, the applicant, Innovence, Tourconsult and 01-Pliroforiki entered into a formal agreement on the distribution of tasks and funds within the Ecodata project. That distribution was explained in the applicant’s initial report which was submitted in April 1993 (hereinafter “the initial report”).

15. The applicant submitted a second report in July 1993 and a final report in October 1993. It also invited the Commission to a presentation of the work which had been completed. That presentation took place on 15 November 1993.

16. By letter of 30 November 1993 the Commission informed the applicant that:

“... the Commission considers that the report submitted on the [Ecodata] project shows that the work completed by 31 October 1993 does not satisfactorily correspond with what was envisaged in your proposal dated 22 April 1992. The Commission therefore considers that it should not pay the outstanding 40% of its proposed contribution of ECU 530 000 for this project.

The Commission’s reasons for taking this position include the following:

1. The project is nowhere near complete. Indeed the original proposal provided for a pilot phase as the fifth stage of the project. Stages six and seven respectively were to be System Evaluation and System Expansion (to the 12 Member States) and it is clear from the timetable set out on page 17 of the proposal that these were to be completed as part of the project to be co-financed by the Commission.

2. The pilot questionnaire was manifestly over-detailed for the project in question having regard in particular to the resources available and the nature of the project. It should have been based on a more realistic appraisal of the principal information needed by those dealing with questions of tourism and the environment ...

3. The linking together of a number of databases to establish a distributive database system has not been achieved at 31 October 1993.

4. The type and quality of data from the test regions is most disappointing, particularly as there were only four Member States with three regions in each. A great deal of such data as there is in the system is either of marginal interest or irrelevant for questions relating to the environmental aspects of tourism particularly at the regional level.

5. These reasons and others which are also apparent, sufficiently demonstrate that the project has been poorly managed and coordinated by IPK and has not been implemented in a manner which corresponds with its obligations.

The Commission has, moreover, to be satisfied that the 60% already paid (ECU 318 000) has been used, in accordance with the Declaration made by you on acceptance of your proposal of 22 April 1992, only for realising the project described in your proposal. The Commission wishes to make the following observations on your report relating to use of the funds:

[points 6 to 12 of the letter]

If [the applicant has] any observations to make on our assessment of the position in relation to costs, you are requested to do so as soon as possible. It is only at that stage that the Commission will be able to form its final opinion on whether the 60% already paid has been used in accordance with the Declaration and decide as to whether retention of that amount by [the applicant] is justified.

...”

17. The applicant expressed its disagreement with the contents of that letter, in particular in a letter to the Commission dated 28 December 1993. Meanwhile, it continued development of the project and made several public presentations. On 29 April 1994 the applicant met with representatives of the Commission in order to discuss their differences.

18. By letter dated 3 August 1994, Mr Jordan, a director in DG XXIII, informed the applicant as follows:

“I am sorry that it was not possible to reply to you directly at an earlier stage following our exchange of letters and the meeting [of 29 April 1994].

... [T]here is nothing in your reply of 28 December which would lead us to change our opinion. However you raise a number of additional matters on which I would like to comment. ...

I now have to inform you that having fully considered the matter ... I see little point in our having a further meeting. I am therefore now confirming that we will not, for the reasons set out in my letter of 30 November and above make any further payment in respect of this project. We will continue to review with the other services whether or not we should ask for a refund of part of the 60% already paid. In the event that we decide to seek such a refund, I will let you know.”’

II – Procedure

4. It was in those circumstances that, by an application lodged at the Registry of the Court of First Instance on 13 October 1994, the applicant brought an action for annulment of the decision.

5. By its judgment of 15 October 1997 in Case T-331/94 IPK v Commission [1997] ECR II-1665, the Court of First Instance dismissed the action.

6. In paragraph 47 of its judgment, the Court of First Instance held:

‘... the applicant cannot claim that the Commission caused the delay in the completion of the project. The applicant waited until March 1993 before starting discussions with its partners concerning the distribution of tasks with a view to completing the project, even though it was responsible for coordination of the project. Thus, the applicant allowed one half of the time envisaged for completing the project to elapse before it was reasonably able to commence proper work. Even though the applicant has provided some evidence that one or more officials of the Commission did interfere in the project between November 1992 and February 1993, it has not established at all that this interference prevented it from engaging in proper cooperation with its partners before March 1993.’

7. By application lodged at the Registry of the Court of Justice on 22 December 1997, IPK brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance in IPK v Commission.

8. In its judgment in Case C-433/97 P IPK v Commission [1999] ECR I-6795, the Court of Justice held:

‘15 ... it should be observed that, as appears from paragraph 47 of the judgment under appeal, the applicant did provide some evidence of the Commission officials’ interference in the management of the project, particulars of which are given in paragraphs [9 and 10 above]. That interference was likely to have had an impact on the smooth running of the project.

16 In circumstances such as those, it was for the Commission to show that, notwithstanding the interference in question, the applicant continued to be able to manage the project in a satisfactory manner.

17 It follows that the Court of First Instance erred in law by requiring the applicant to furnish proof that the Commission officials’ actions made it impossible for it to engage in proper cooperation with its partners in the project.’

9. Consequently, the Court of Justice set aside the judgment of the Court of First Instance in IPK v Commission, referred the matter back to that Court pursuant to the first paragraph of Article 54 of the EC Statute of the Court of Justice and reserved the costs.

10. Subsequent to that reference, the Court of First Instance, by the contested judgment, annulled the decision and ordered the Commission to bear its own costs and those incurred by IPK before the Court of First Instance and the Court on the ground that the Commission, by refusing to pay the second instalment of the assistance on the ground that the project was not completed by 31 October 1993, had acted in breach of the principle of good faith.

III – Forms of order sought by the parties

11. IPK claims that the Court should:

– set aside the judgment under appeal in so far as it starts from the premiss, in paragraph 34 et seq., that points 6 to 12 of the Commission’s letter of 30 November 1993 do not form part of the grounds on which the decision is based.

– order the Commission to pay the costs.

12. The Commission contends that the Court should:

– set aside the judgment under appeal and dismiss the action brought by IPK against the decision,

– in the alternative, set aside the judgment under appeal and refer the case back to the Court of First Instance,

– order IPK to pay the costs.

IV – Pleas in law and arguments of the parties

13. IPK raises three pleas in law in support of its appeal, alleging:

– first, incorrect appraisal of the subject-matter of the dispute,

– second, alleged infringement of the obligation to state reasons,

– third, alleged infringement of the binding effect of the Court’s judgment in IPK v Commission.

14. The Commission invokes, in its appeal, five procedural irregularities which adversely affect its interests:

– first, allegedly incomplete assessment of the statement of reasons for the decision and breach of the prohibition of unjust enrichment,

– second, allegedly incorrect assessment of the unlawful collusion between Mr Tzoanos, the Greek undertaking 01‑Pliroforiki and IPK,

– third, allegedly incorrect assessment of the Commission’s proposal that Studienkreis should participate in the project,

– fourth, failure to consider the consequences of a breach of the principle of good faith,

– fifth, failure to consider the principles dolo agit, qui petit, quod statim redditurus est and fraus omnia corrumpit (‘he acts in bad faith who demands what he might straight away to give back’ and ‘fraud corrupts everything’).

V – Concerning admissibility of the appeals

15. The Commission describes its pleas as based on ‘procedural irregularities’. A reading of the list above indicates that they are, in actual fact, as IPK correctly points out, pleas going to the substance. They do not in fact concern procedural irregularities but, on the contrary, invite the Court to examine the substance of several aspects of the reasoning of the Court of First Instance.

16. That said, this error of classification is devoid of consequences. Indeed, it does not obscure the content of those pleas and cannot therefore relieve the Court from the necessity of analysing them.

17. IPK’s argument that the incorrect classification of its pleas by the Commission must result in the inadmissibility of the Commission’s appeal must therefore be rejected.

18. Although there can scarcely be any doubt as to the admissibility of the appeal brought by the Commission, whose decision was annulled by the Court of First Instance and which acted within the time-limits, it must be stated from the outset that this is not the case for IPK.

19. In this respect, the Commission points out that IPK no longer exists under that name and that, if this information is correct, the question arises whether it has capacity to bring an action. IPK however argues that there has been a mere change of name and that it is still registered under the same number with the Commercial Register at Munich. That ought to suffice to dispel the Commission’s doubts.

20. The real problem, however, is elsewhere and becomes clear on reading the forms of order sought by IPK. It is recalled that IPK requests that the Court annul the judgment of the Court of First Instance ‘in so far as it is based on the principle, at paragraph 34 et seq., that points 6 to 12 of the Commission’s letter of 30 November 1993 are not among the grounds on which the decision is based’.

21. It is clear from the outset that these claims are not aimed at obtaining a variation of the operative part of the judgment under appeal, which annulled the Commission’s decision. On the contrary, they expressly concern part of the grounds of the Court of First Instance’s reasoning which IPK would like to have raised.

22. It follows that the appeal does not meet the conditions fixed by the Court’s Rules of Procedure. Article 113(1) thereof states that an appeal may seek to set aside, in whole or in part, a decision of the Court of First Instance, which necessarily implies that a party must request variation of the operative part of the contested judgment.

23. Furthermore, such an appeal falls foul of the wording of the second paragraph of Article 56 of the EC Statute of the Court of Justice which limits the right to bring an appeal to parties which were unsuccessful, in whole or in part, at first instance. This is not true of IPK which, at first instance, sought annulment of the Commission’s decision and which obtained that annulment.

24. It is also apparent from case-law that such an appeal is inadmissible. Accordingly, the Court has held that an appeal in the context of which the appellant, who had obtained the measure applied for at first instance, requested that the measure be given a legal basis other than that found at first instance, was inadmissible. ( )

25. It is true that IPK appears to complain that the Court of First Instance annulled the decision only in part, in that certain grounds were not set aside. This argument does not survive examination. It is apparent from merely reading the operative part of the contested judgment that the Commission’s decision was annulled without any restriction. It necessarily follows that the annulment is total.

26. I would add, in that respect, that in any event it is not for the Court of First Instance to annul the grounds on which a decision is based. Indeed, by definition, a ground cannot constitute an act having adverse effects, which may be annulled on that basis. Only the operative part of a decision may have adverse effects and thus be subject to annulment. The operative part of the decision, that is to say, the refusal to pay the balance of Community aid, is, in accordance with the operative part of the contested decision, unquestionably annulled in its entirety.

27. The appellant appears, in this context, to confuse the annulment of a ground on which a decision is based, which is precluded because a ground is not an act which has adverse effects, with the duty of the institution which is the author of the measure annulled to give due effect to the judgment annulling the measure. Indeed, the course of action to be adopted by the said institution depends on the content of the annulling judgment. The judgment might make it clear that the statement of reasons on which the contested measure was based was deficient and that the institution must, in consequence, remedy that defect. The fact remains that, in any event, it is the decision which is annulled, as an act having adverse effects, and not the grounds deemed to substantiate it.

28. IPK’s argument indeed appears to reveal this confusion. IPK submits that the Court of First Instance ought to have annulled points 6 to 12 of the letter of 30 November 1993, to which the decision referred, on the ground that the Commission could rely on their content to substantiate any future decision demanding reimbursement of the aid already paid.

29. However, the fact that the said paragraphs possibly may be used by the Commission in the future cannot, in any circumstances, give them the status of an act having adverse effects and therefore capable of being annulled. Only the future decision could possess such status.

30. It results from the foregoing that IPK’s application must be dismissed as inadmissible. It is therefore not necessary to examine the merits of the arguments put forward by IPK.

VI – Concerning the substance of the dispute: the Commission’s pleas in law

A – First plea: allegedly incomplete assessment of the statement of reasons for the decision and breach of the prohibition of unjust enrichment

1. Concerning the allegedly incomplete assessment of the statement of reasons for the decision

31. The Commission’s criticism relates to the finding by the Court of First Instance in paragraph 86 of the judgment under appeal, which reads as follows:

32. ‘Therefore, given that, first, from the summer of 1992 until at least 15 March 1993 the Commission insisted that the applicant involve Studienkreis in the Ecodata project (even though the applicant’s proposal and the decision granting the aid did not provide for that undertaking’s participation in the project), – something which necessarily delayed realisation of the project – and that, second, the Commission has not shown that, in spite of its interference, the applicant continued to be able to manage the project in a satisfactory manner, it must be held that the Commission acted in breach of the principle of good faith by refusing to pay the second instalment of the aid on the ground that the project was not completed on 31 October 1993.’

33. According to the Commission, the judgment under appeal did not take into account the fact that the decision was based on two quite different reasons, namely, first, that the project was not completed by 31 October 1993, given that stages six and seven had not been completed (see paragraphs 1 and 3 of the decision) and, second, that the work already carried out by IPK in stages one to five, and charged at a high price, was unusable (see paragraphs 2 and 4 of the decision).

34. The Court of First Instance did not make any reference at all to this second reason, although it was the subject of a detailed statement of reasons in points 2 and 4 of the letter of 30 November 1993. Indeed, those paragraphs did not relate to the sixth and seventh stages but the preliminary phases of the project during which IPK had completed work which was quantitatively important but lacking sense, for which manifestly IPK also had enough time. The Commission, in its defence of 12 January 1995 (see paragraphs 147 to 150) and in its rejoinder of 29 June 1995 (see paragraphs 122 to 124) expressed itself at length on this point. The Court of First Instance did not take this into account.

35. In citing only point 1 of the letter of 30 November 1993, the Court of First Instance referred exclusively to the fact that phases six and seven of the project were unfinished and therefore did not examine the second reason supporting the decision to refuse to pay the balance of the financial assistance, which the Court of First Instance annulled in its entirety.

36. For the Commission, the statement of reasons on which the contested judgment is based is therefore inadequate and vitiated by an error in law.

37. In response, IPK submits as a preliminary point that this plea, based on a supposedly inadequate service provided by IPK, is a plea of pure fact, which therefore does not fall within the scope of the Court’s review in the context of an appeal. The Commission’s appeal, in actual fact, is intended to achieve a new examination of the arguments already raised before the Court of First Instance which, according to the Court’s case-law, does not fall within the scope of the purpose of an appeal (see the order of the President of the Court of 16 July 1998, Case C-252/97 P N v Commission [1998] ECR I-4871, paragraph 15).

38. IPK submits, furthermore, that contrary to the Commission’s claim, it is apparent from paragraph 35 of the contested judgment that the Court of First Instance did in fact examine points 2 to 4 of the letter of 30 November 1993.

39. IPK adds that the Court of First Instance was bound by the judgment making the reference. Since the Court of First Instance found that the Commission had not proved, as required by the Court, that its conduct had not prevented IPK from managing the project in a satisfactory manner, the Court of First Instance was compelled to annul the decision in its entirety. It was not possible to limit the scope of the nullity to a part of the decision.

40. What is to be thought of these arguments?

41. Contrary to IPK’s claim, the first plea relied on by the Commission is not based on fact. The Commission is not seeking to raise the problem of the existence or scope of the inadequacies in the services provided by IPK, which would indeed be a point of fact.

42. What the Commission does object to is that the Court of First Instance considered that the decision was not sufficiently reasoned on the basis of point 1 alone of the letter of 30 November 1993, without taking into account the grounds arising from points 2 and 4 of the said letter.

43. The Commission’s argument therefore amounts to a claim that the decision was validly reasoned by the sole reference to the inadequacies in the services provided by IPK as mentioned in points 2 and 4 of the letter of 30 November 1993.

44. However, the fact remains that there is no mention of this argument in the documents submitted by the Commission in the context of the proceedings before the Court of First Instance. It is certainly true that the Commission has, from its defence onwards, raised the inadequacies of the services provided by IPK. Thus, for example, the passages of the Commission’s defence to which it refers in the context of this plea indeed contains considerations regarding the questionnaire drawn up by IPK.

45. However, it is not written anywhere that the Commission maintains that the considerations stated in points 2 and 4 alone of the letter of 30 November 1993 would provide adequate reasoning for the decision and avoid the nullity which, according to the Court of First Instance, stems from the breach of the principle of good faith.

46. It follows that the Commission, at the stage of the appeal, relies on a new plea. It is settled case-law that such pleas are not admissible. ( ) It must therefore be rejected on that basis.

2. Concerning breach of the prohibition of unjust enrichment

47. The Commission complains that the Court of First Instance has caused IPK to be unjustly enriched inasmuch as it requires the Community to pay for pointless work going against the project, without having carried out the appropriate legal review.

48. In response, IPK points out, first, the purely factual nature of the plea relied on. Second, the alleged prohibition of unjust enrichment is not, according to IPK, a legal principle of Community law or a principle of Belgian or German law. Third, IPK points out that payment of the second instalment of Community aid has a legal basis, namely the agreement entered into by the Commission and IPK. However, unjust enrichment implies a benefit without a legal basis.

49. It must be pointed out, however, that the enrichment of IPK, arising from payment of the balance of Community financial aid, is unjust only if IPK was not entitled to the said payment, which it is precisely for the Commission to prove.

50. It follows that the plea based on a breach of the prohibition of unjust enrichment cannot assist the Commission and must be rejected.

51. The first plea advanced by the Commission must therefore be rejected in its entirety.

B – Second plea: allegedly inaccurate assessment of the unlawful collusion between Mr Tzoanos, the Greek undertaking 01-Pliroforiki and IPK

52. At paragraphs 88 and 89 of the judgment under appeal, the Court of First Instance described the argument of the Commission based on collusion between Mr Tzoanos, the undertaking 01-Pliroforiki and IPK. The Court of First Instance then rejected it in the following terms:

‘90 The Court notes that there is no mention in either the contested decision or the letter of 30 November 1993, to which the contested decision refers, of collusion between Mr Tzoanos, 01-Pliroforiki and the applicant, which prevented payment of the second instalment of the aid to the applicant. The contested decision and the letter of 30 November 1993 do not, furthermore, give any indication that the Commission considered that the way in which the aid had been granted to the applicant was irregular. In those circumstances, the Commission’s explanation concerning the alleged existence of collusion between the parties concerned cannot be regarded as clarifying in the course of the proceedings the reasons stated in the contested decision (see, to that effect, Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case T-16/91 RV Rendo and Others v Commission [1996] ECR II-1827, paragraph 45; and Case T-77/95 RV Ufex and Others v Commission [2000] ECR II-2167, paragraph 54).

91 If account is taken of the fact that, under Article 173 of the EC Treaty (now, after amendment, Article 230 EC), the Court of First Instance must confine itself to a review of the legality of the contested decision on the basis of the reasons set out in that measure, the Commission’s argument concerning the principle fraus omnia corrumpit cannot be upheld.

92 It must be added that if the Commission, having adopted the contested decision, had taken the view that the evidence mentioned in paragraph 89 above was sufficient to conclude that there was collusion between Mr Tzoanos, 01-Pliroforiki and the applicant which had vitiated the procedure by which aid was allocated to the Ecodata project, rather than pleading in the present proceedings a ground which was not mentioned in the contested decision, it could have withdrawn that decision and adopted another decision not only refusing to pay the second instalment of the aid but also ordering repayment of the instalment that had already been paid.

93 Accordingly, the contested decision must be annulled without there being any need to consider the other plea advanced by the applicant.’

53. The Commission complains that the Court of First Instance failed to have regard to the considerations set out at paragraphs 15 and 16 of the Court’s judgment in IPK v Commission. Indeed, if it is for the Commission ‘to show that, notwithstanding the interference in question, the applicant continued to be able to manage the project in a satisfactory manner’, the Court of First Instance could not ignore its argument regarding collusion as irrelevant. The Commission has explained that this collusion delayed the performance of the project at least until February 1993, given that, first, the project partners could not agree on the allocation of the funds called for by Mr Tzoanos in favour of the Greek partner, which brought the project to a standstill and that, on the other hand, IPK deliberately concealed the actions of Mr Tzoanos from Mr von Moltke.

54. According to the Commission, by not taking account of the entire set of facts which it put forward in respect of collusion, the Court of First Instance, from the outset, made it impossible for the Commission to prove that the delay in the project was not due to its proposal of 27 July 1992 that Studienkreis should participate in the project, but to collusion. When, therefore the Court of First Instance, at paragraph 85 of the contested judgment, said that ‘since the Commission has failed to put forward any other arguments’, the Commission has not shown that IPK, in spite of the interference of the Commission, ‘continued to be able to manage the project in a satisfactory manner’, the Court of First Instance drew an incorrect conclusion, given that it had not considered all the arguments regarding a delay in the work caused by the collusion nor taken the evidence submitted in this regard into consideration.

55. By contrast, IPK states that there was no collusion between it and Mr Tzoanos and 01-Pliroforiki. The lawfulness of the decision must be assessed only with regard to the grounds on which it was adopted. As the Court of First Instance noted, the decision does not contain any statement as to any supposed collusion between IPK and 01-Pliroforiki.

56. Further, according to IPK, the Court of Justice, at paragraph 16 of its judgment in IPK v Commission, imposed on the Commission the obligation to furnish positive proof. The Commission had to show that the delay in carrying out the project was not caused by the intervention of the Commission officials and that IPK, in spite of that, was capable of completing the project in time. This obligation has not been satisfied by the Commission which, on the contrary, seeks to circumvent it by negative evidence. The Commission tries to show that IPK was not able to complete the project within the time-limit on account of the alleged collusion. Moreover, IPK adds that the Commission itself must admit that it relies on mere grounds of suspicion which were fabricated to avoid fulfilling its contractual obligations.

57. What are we to make of these arguments?

58. The Commission criticises the contested judgment in so far as it disregards the evidence furnished in support of the lawfulness of its decision and intended to show that collusion between IPK, 01‑Pliroforiki and Mr Tzoanos contributed to the delay in realising the project.

59. This plea is based on an incorrect assessment of the Court’s judgment. In point of fact, the Court’s judgment set aside the judgment of the Court of First Instance on the ground that it required IPK to prove that the Commission’s interference had made it impossible for IPK to fulfil its obligations properly, although IPK had submitted various elements constituting prima facie evidence, which had the effect of shifting the burden of proof and therefore of requiring the Commission to prove that the smooth execution of the project remained possible in spite of the interference of its agents.

60. The Court’s reasoning does not, however, mean, as the Commission seems to think, that it is now enough for the latter to prove, in any way possible, that the delay in the execution of the project had any cause other than the interference of its representatives.

61. Indeed, such an approach would be tantamount to allowing the Commission to furnish, a posteriori, a statement of reasons which did not appear in the contested decision. However, it is clear from settled case-law that the statement of reasons must, as a rule, be notified to the person concerned at the same time as the decision adversely affecting him and that a failure to state the reasons cannot be remedied by the fact that the person concerned learns of the reasons for the decision during the proceedings before the Court. ( ) Indeed, the purpose of the statement of reasons is, in particular, to allow the person to whom the decision is addressed to evaluate its validity, in particular to assess the chance of a possible appeal. This purpose could not be fulfilled if it were accepted that the reasons of a decision should not appear in that decision, but may be set out before the Court by the institution author of the act.

62. There is no reason to accept that the Court wished to disregard this consistent case-law, imposed by the imperative requirement of legal certainty, in order to enable the Commission to justify its decision ex post by stating that the grounds for the decision was collusion that is not mentioned anywhere in the wording of the decision itself.

63. It follows that the Court of First Instance was fully entitled to consider as decisive the indisputable fact that the collusion alleged by the Commission was not one of the grounds of the decision and, on this basis, to reject the Commission’s argument. In this connection, it had no duty to rule on the factual validity of the Commission’s claim that the delay in the execution of the project was due to the collusion rather than the interference of its agents.

64. It is apparent from the consistent case-law set out above that even if the Commission’s claims were true, that would not have relieved the Commission from the necessity of mentioning them in the text of the decision.

65. Therefore, the Commission’s plea based on an alleged error in the assessment of the collusion between IPK, 01-Pliroforiki and Mr Tzoanos must be rejected.

C – Third plea: allegedly incorrect assessment of the Commission’s proposal that Studienkreis should participate in the project

66. It is apparent from sending the Commission’s submissions that this plea can be split into various aspects.

67. First, according to the Commission, the analysis made by the Court of First Instance is contradictory and incorrect. Indeed, the Court of First Instance has observed itself that the Commission’s proposal to have Studienkreis participate in the project was a proposal made in the interest of the project and did not involve any restriction on IPK. The Commission points out, in that respect, that at paragraph 8 of its judgment, the Court of First Instance notes that the Commission had proposed to IPK that Studienkreis participate and that, at paragraph 69 of its judgment, the Court of First Instance states that the Commission had merely asked IPK to ‘examine possibilities’ of collaboration.

68. The Commission adds that the Court of First Instance has observed that it had not made the grant of aid conditional on agreement to Studienkreis’s participation. Moreover, the Court of First Instance did not make any declaration as to possible difficulties which a rejection or a lack of consideration of this proposal would cause the appellant.

69. Further, at paragraph 78 of the grounds of the judgment, the Court of First Instance agreed, theoretically, with the Commission’s line of argument by stating that ‘if it were shown that the Commission had first intervened with a view to involving Studienkreis in the execution of the Ecodata project in February 1993 for the purpose of saving the project which, at that time, had still not got off the ground, it could be accepted that the interference in question had not prevented the applicant from carrying out the project in a satisfactory manner but was intended, on the contrary, to enable the applicant to honour its obligations within the period and under the terms prescribed’.

70. The Court of First Instance therefore found nothing unlawful in the meeting of 19 February 1993 and did not refer to any other statement by the Commission seeking to have Studienkreis participate in the project.

71. For the Commission, it was, consequently, wholly contradictory for the Court of First Instance, after having made all these findings, nevertheless to conclude at paragraph 79 of the contested judgment that the Commission’s proposal was in breach of the principle of good faith. The Commission also cites, in this respect, paragraph 86 of the contested judgment.

72. It will be recalled that in this paragraph, ( ) the Court of First Instance, taking account of the circumstances found to be facts, held that ‘it must be held that the Commission acted in breach of the principle of good faith by refusing to pay the second instalment of the aid on the ground that the project was not completed on 31 October 1993’.

73. It therefore unarguably follows from a reading of this paragraph that, contrary to the Commission’s claim, the Court of First Instance did not consider that the proposal to involve Studienkreis was in breach of the principle of good faith. It is the fact of having refused to pay the balance of the aid on the ground that the project was not completed, although the Commission’s joint responsibility for this delay could not be ruled out, which constituted the breach of the principle.

74. There is, moreover, a second reason which leads to the conclusion that there is no contradiction as alleged by the Commission. Indeed, contrary to what the Commission suggests, the Court of First Instance did not in any way regard the Commission’s initiative as a mere proposal, or even friendly advice.

75. Indeed, it is apparent from the in-depth examination of the facts which the Court of First Instance carried out at paragraphs 69 to 85 of its judgment that it held that the Commission had attempted to oblige IPK to accept the participation of Studienkries (paragraph 70 of the judgment). The Court of First Instance stated that the Commission’s wish to involve Studienkreis had a binding effect on IPK (paragraph 73 of the judgment). The Court of First Instance concluded that the Commission, between the summer of 1992 and 15 March 1993 at least, had exerted constant pressure on IPK to involve Studienkreis in the execution of the Ecodata project.

76. Second, the Commission also alleges, under this plea, that there is another contradiction in the Court of First Instance’s reasoning. It asserts that the Court of First Instance could not, on the one hand, regard the proposal to involve Studienkries as a breach of the principle of good faith and, on the other hand, submit, at paragraph 69 of the judgment, that the Commission could have required agreement to the participation of Studienkries by including a condition to that effect in its decision granting the aid.

77. Indeed, although a mere proposal left IPK entirely free to decide as to the merits of the possible participation of Studienkries, the imposition of a condition to that effect would be legally binding and thus, a fortiori, a restriction imposed on IPK’s freedom to manage the project as it saw fit.

78. This argument must be rejected for two reasons. As already stated, the Court of First Instance did not consider that the Commission had merely formulated a proposal. Furthermore, and above all, the reasoning a fortiori carried out by the Commission wrongly disregards the decisive nature of the time of its intervention.

79. Indeed, if the Commission had chosen, at the time of its decision to grant the aid, to require Studienkries to be involved, any candidates would have known what to expect and could have taken steps accordingly. In other words, legal certainty would have been ensured. This would not be the case, on the other hand, if, as in this instance, the Commission exerted pressure ex post to secure the involvement of Studienkries although, in the absence of formal conditions in this respect, the parties concerned were entitled to consider that they were free to organise the realisation of the project as they saw fit.

80. It follows from the above that the third of the Commission’s pleas must be rejected.

D – Fourth plea: failure to consider the consequences of a breach of the principle of good faith

81. By this plea, the Commission complains that the Court of First Instance deduced from the breach of the principle of good faith that the decision in its entirety was null and void. The Court of First Instance therefore erred in law, given that it assumes the existence of a correspondence between the financial value of stages six and seven of the project which have not been carried out and the amount of the second instalment of the aid which has not been paid, which means that the Court of First Instance considers that the value of stages six and seven of the project amounts exactly to 40% of its total costs. However, there is no relevant correspondence, the decision covering not only the non existence of stages six and seven of the project, but also the poor execution of stage five for which the Commission, by the decision, also refused payment of the sum requested.

82. Because, ultimately, this case involves sums which are precisely quantifiable and quantified, the Court of First Instance, at paragraph 94 of the contested judgment, ought not to have pronounced the annulment of the entirety of the decision, as a legal consequence of its analysis, but have annulled the decision in so far as the Commission refused, by the decision, to contribute financially to expenses legally incurred by IPK for stages six and seven of the project which, subsequently, did not see the light due to lack of time.

83. IPK counters that this plea cannot be accepted either and that, as it had correctly noted as regards the first of the Commission’s pleas, partial annulment of the decision is not possible on account of the binding nature of the Court’s judgment and the homogeneity of the decision granting the aid.

84. I am of the opinion that the Commission’s argument fails to have regard to the scope of the defect noted by the Court of First Instance. Indeed, the latter held that, in seeking, in the circumstances of the case, to justify the refusal to pay the balance of the aid on the grounds of the delay in executing the project, while disregarding the impact of its own interference in causing this delay, the Commission acted in breach of the principle of good faith. The Court of First Instance also found, and I refer in this regard to my explanations in respect of the Commission’s first plea, that the decision did not include the other grounds put forward by the Commission during the proceedings.

85. It was therefore impossible for the Court of First Instance to annul the decision in part. The decision lacking the necessary statement of reasons, according to the Court of First Instance, this defect could not fail to affect the entirety of the decision. The Court of First Instance therefore did not assume that there was a correspondence between the value of the phases of the project which had not been realised and the value of the balance of the aid. It could have been otherwise only if the Court of First Instance had found that the defects affecting the decision concerned only parts of that decision.

86. However, it is not apparent from the wording of the decision that the delay noted by the Commission was supposed to justify only the refusal to pay a part of the balance of the aid.

87. The Court of First Instance was therefore entitled to conclude that the defects affected the entirety of the decision.

88. I am not, furthermore, convinced that annulment in part, which apparently the Commission would have preferred, would have necessarily been in the interests of the Commission. Indeed, the Commission would have been bound to pay an amount, admittedly lower than the balance of the aid, but which it would not necessarily have considered appropriate. On the other hand, the total annulment pronounced by the Court of First Instance creates a different context. The Commission, as the Court of First Instance quite rightly pointed out, must take the measures required to comply with the judgment. The Commission must therefore remedy the defects affecting its decision, but the content of the decision is not otherwise prejudiced.

89. For the above reasons, I suggest that the plea based on a failure to consider the consequences of a breach of the principle of good faith should be rejected.

E – Fifth plea: failure to consider the principles dolo agit, qui petit, quod statim redditurus est and fraus omnia corrumpit

90. The Commission alleges that, in dealing with the question of collusion, the Court of First Instance disregarded the principles dolo agit, qui petit, quod statim redditurus est (he (acts in bad faith) who demands something which ought to be given back immediately) and fraus omnia corrumpit (fraud corrupts everything), expressly invoked by the Commission during the oral proceedings before the Court of First Instance on 16 November 2000. The latter declared, at that time, that it was not a criminal court and that it could not consider the question of collusion.

91. The Commission points out that it is not a criminal court either, but that it must nevertheless fulfil its responsibilities with regard to the protection of the Community’s financial interests. On the one hand, the Commission is in a dilemma inasmuch as it must, when there is any suspicion of corruption, take decisions well before it can rely on criminal decisions having the force of res judicata. As this case shows, it is not possible either to stay proceedings before the Court of First Instance pending any criminal judgment, so long as the party charged has not given his agreement.

92. On the other hand, the Court of First Instance is exacting as regards evidence of an offence. In the absence of a criminal judgment having the force of res judicata, the Commission could do no more than rely on circumstantial evidence and the results of the enquiry from the time they became evident and in so far as they existed. The Commission states that it submitted to the Court of First Instance the relevant circumstantial evidence, that is to say, first, that the collusion had delayed the project and second, that the said evidence constituted a ground of defence against IPK’s demand for payment of the second instalment of the aid. By precluding that the abovementioned principles could apply as grounds of defence in this instance and by requiring the Commission to adopt another decision with a new statement of reasons, the Court of First Instance in the end requires the Commission to pay the aid so long as the suspicion has not become an irrefutable certainty.

93. The Commission considers, furthermore, that failure to take into account the principle dolo agit, qui petit, quod statim redditurus est and the conclusion of the Court of First Instance that it could consider the principle fraus omnia corrumpit only if it was put forward as a reason for the decision itself and not a ground of defence set against a claim are errors in law. Like national civil and criminal courts, the Court of First Instance, has after all, wide powers of inquiry to examine the facts.

94. Although the Commission’s dilemma is understandable, it must nevertheless be stated that the solution which it suggests cannot be accepted.

95. Indeed, to accept the Commission’s arguments would be tantamount to granting it the right to rewrite the statement of reasons, and perhaps even the substance, of a contested decision on the pretext that new considerations have become apparent and as the Commission makes discoveries. From that perspective, an action for annulment would no longer concern a particular measure, the content of which is known to the applicant who formulates an action on the basis of that content but, on the contrary, a moving target, alterable according to how events develop and which the applicant would have to hunt down.

96. It goes without saying that such an approach is incompatible with the very notion of judicial review, which it renders wholly meaningless. In addition, it runs counter to the requirements of the most basic legal certainty.

97. It is therefore hardly surprising that this approach is in conflict with the settled case-law of the Court, which I have already emphasised in examining the first plea, according to which the validity of an act is to be assessed in the light of the grounds which it contains and an institution is not entitled to bring new grounds before the court.

98. It follows, moreover, that the Commission cannot complain that the Court of First Instance did not make use of its power of investigation. Indeed, even if the Court of First Instance had been able to prove the collusion alleged by the Commission, it would not have been able to refer to, for want of any mention of the said collusion in the grounds of the decision.

99. Must it none the less be accepted that the Commission is required to sacrifice the financial interests of the Communities by making payments to fraudulent operators?

100. That is not so. On the contrary, the Commission is quite capable of applying the principle fraus omnia corrumpit. Indeed, as the Court of First Instance correctly noted at paragraph 92 of its judgment, ‘if the Commission, having adopted the contested decision, had taken the view that the evidence mentioned in paragraph 89 above was sufficient to conclude that there was collusion between Mr Tzoanos, 01-Pliroforiki and the applicant which had vitiated the procedure by which aid was allocated to the Ecodata project, rather than pleading in the present proceedings a ground which was not mentioned in the contested decision, it could have withdrawn that decision and adopted another decision not only refusing to pay the second instalment of the aid but also ordering repayment of the instalment that had already been paid’.

101. The Commission is therefore entitled to take necessary measures where concrete evidence indicates that action on its part is required in order to protect the financial interests of the Community. It is to be noted that, contrary to the Commission’s claim, the Court of First Instance did not require the Commission to wait for the delivery of any civil or criminal judgment or to have sufficient evidence to obtain a criminal conviction.

102. It follows from the foregoing that this plea must also be rejected and therefore the Commission’s appeal in its entirety.

VII – Conclusion

103. I therefore suggest that the Court should:

– dismiss the appeal brought by IPK-München GmbH as inadmissible;

– dismiss the appeal brought by the Commission of the European Communities as partly inadmissible and partly unfounded;

– order each party to bear its own costs.