Opinion of Mr Advocate General Cosmas delivered on 13 November 1997. - Windpark Groothusen GmbH & Co. Betriebs KG v Commission of the European Communities. - Appeal - Financial support in the energy sector - Thermie programme - Right to full legal protection - Duty to state reasons - Right to a hearing - Discretion. - Case C-48/96 P.



European Court reports 1998 Page I-02873



Opinion of the Advocate-General

I - Preliminary observations

1 In this case the Court has been asked to give judgment on the appeal by Windpark Groothusen GmbH & Co. Betriebs KG (`the appellant') against the judgment delivered on 13 December 1995 by the First Chamber of the Court of First Instance of the European Communities (1) (`the contested judgment').

2 The Court of First Instance dismissed, first, the application for annulment of the Commission's decision of 13 January 1994 refusing Windpark the financial support which it had requested in the framework of the Thermie programme for 1993 and, secondly, the application for an order that the Commission take a new decision.

II - Facts

3 The following facts emerge from the contested judgment (paragraphs 1 to 16):

4 On 29 June 1990 the Council adopted Regulation (EEC) No 2008/90 concerning the promotion of energy technology in Europe (Thermie programme) (2) (`the Thermie Regulation'). The Thermie programme covers a total of 17 sectors of application, including wind energy.

5 In accordance with Article 8 of the Thermie Regulation, the procedure for the selection of eligible projects is initiated by the Commission, which must publish an invitation to submit projects in the Official Journal of the European Communities. For the selection of projects with a total cost exceeding ECU 500 000, the Commission is assisted by a committee composed of the representatives of the Member States (`the Thermie Committee'), which delivers an opinion on draft measures which are submitted to it by the Commission. If the measures adopted by the Commission are not in accordance with the Thermie Committee's opinion, the Commission must immediately communicate them to the Council. Pursuant to Article 10(1) of the Thermie Regulation, the Council may then take a different decision from the Commission.

6 For 1993, the Commission published in the Official Journal (3) of 16 July 1992 a communication on the provision of financial support to projects for the promotion of energy technology (Thermie Programme). It invited interested parties to submit, before 1 December 1992, projects for possible selection to receive financial support in 1993. It also specified, in accordance with Article 8(2) of the Thermie Regulation, the sectors to be given priority, that is to say, `low energy, low CO2 buildings' and `integrated urban traffic management systems'. In addition, the Commission stated that a document giving details of the procedure for the submission of proposals and information on the eligibility conditions, selection criteria and other relevant information could be obtained from it.

7 The appellant is a company whose object is to construct and operate a wind park in the Groothusen area, near Emden in Germany.

8 On 27 November 1992 the appellant submitted to the Commission an application for aid of ECU 1 933 495 for the construction of a wind park.

9 The Commission received approximately 700 proposals. In March 1993 the Directorate-General for Energy drew up a document appraising these projects. On 5 April 1993 they were examined by the technical committee for wind energy and on 3 and 4 June 1993 by the Thermie Committee. (4)

10 On 19 July 1993 the Commission decided to grant financial support to a total of 137 projects. By the same decision it drew up a `reserve list' of 49 replacement projects. Of the 52 projects in the field of wind energy, 11 were granted financial support and eight were entered on the reserve list. A brief communication concerning this decision was published in the Official Journal of 24 July 1993. (5) As stated in the contested judgment, this communication reads as follows:

`The Commission has recently decided as follows:

- an amount of ECU 129 182 448 has been awarded under the Thermie programme as financial support to 137 projects for the promotion of energy technology (Annex I),

- a reserve list of 49 replacement projects is established (Annex II).

Copies of Annexes I and II may be obtained on request in writing to: ...'

11 On 5 August 1993 the Commission informed the appellant that its project had been placed on `a supplementary list of projects which may be granted financial support before 31 December 1993 if sufficient budgetary credits become available, particularly if some of the projects which have already been granted financial support have not been carried out'. According to the annex to that letter, the maximum financial support for the project had been fixed at ECU 918 028. The Commission emphasised that it was in no way bound by the fact that the project had been placed on the supplementary list and disclaimed all responsibility for any consequences which might ensue from a definitive decision not to grant the appellant financial support.

12 By fax of 9 August 1993, addressed to the Commission, the appellant requested further information and authorisation to commence work. The European Communities Liaison Office of the Land of Lower Saxony thereupon informed the appellant that its project was on the reserve list and that a decision concerning possible financial support would be taken some time after the beginning of September 1993.

13 By letter of 13 January 1994 to the appellant, the Commission stated that the appellant's project could not be granted financial support in 1993 owing to the lack of appropriate budgetary credits.

14 The appellant responded by letters of 9 and 23 February 1994, expressing its disappointment and asking the Commission to `review carefully [your] notice of January 13, 1994 and the selection procedure which preceded it'. The Commission replied by letter of 16 March 1994, confirming its letters of 5 August 1993 and 13 January 1994.

15 On 17 March 1994 the appellant brought an action before the Court of First Instance seeking the annulment of the Commission's decision of 13 January 1994 and an order directing the Commission to take a new decision in accordance with the legal principles laid down by the Court of Justice, with an order for costs against the Commission.

16 The Commission requested the Court of First Instance to dismiss the action as unfounded and to order Windpark to pay the costs.

17 Finding that a distinction had to made between the Commission's decision of 19 July 1993 and that in the Commission's letter of 13 January 1994 to the appellant, the Court of First Instance found that the appellant's action was admissible only in so far as it contested the latter decision (paragraph 17 et seq.). In addition, for the reasons set out in the judgment, the Court dismissed the appellant's three pleas in law, namely: (1) failure to comply with an essential procedural requirement in that the decision was not accompanied by an adequate statement of reasons; (2) breach of the fundamental rules of law governing the application of the EC Treaty in that the appellant's right to a hearing was infringed; and (3) misuse of powers in that its application was refused for no apparent reason.

III - Forms of order sought by the parties in the appeal

18 The appellant brought this appeal against the judgment of the Court of First Instance by application lodged at the Registry of the Court of Justice dated 19 February 1996, asking the Court of Justice: (a) to set aside the contested judgment of 13 December 1995, (b) to annul the decisions of the Commission (hereinafter `the respondent') refusing the application for financial support on the basis of the Thermie Regulation (the appellant having been informed of those decisions by letter from the Directorate-General for Energy of 13 January 1994, in conjunction with the letter of 5 August 1993), (c) to order the respondent to take a new decision in the appellant's favour and to grant it financial support of ECU 918 028 in accordance with the principles of law laid down by the Court and, finally, (d) to order the respondent to pay the costs of the first instance and the appeal proceedings.

19 The respondent asks the Court (a) to dismiss the appeal and (b) to order the appellant to pay the costs of the proceedings.

IV - Pleas in

20 The appellant submits that the judgment of the Court of First Instance should be set aside on the basis of six pleas in law: (a) infringement of the right to full legal protection, (b) misapplication of Article 173, fifth paragraph, of the Treaty with regard to the date from which the period prescribed for initiating proceedings begins to run, (c) misapplication of Article 190 concerning the Commission's obligation to state reasons for its decision, (d) infringement of the appellant's right to be heard, (e) misuse of powers and, finally, (f) infringement of Articles 175, third paragraph, 173, fourth paragraph, and 176 of the Treaty.

A - Violation of the right to full legal protection

21 Under its first plea in law the appellant claims that the judgment should be set aside because the Court of First Instance violated its fundamental right to full legal protection. (6) In particular, it contends that the Court of First Instance was wrong to make a distinction (see paragraph 22 of the contested judgment) between, on the one hand, the Commission's decision of 19 July 1993 granting financial support of ECU 129 182 448 to 137 projects for the promotion of energy technology (Annex I) and drawing up a reserve list of 49 replacement projects (Annex II) and, on the other hand, the decision in the letter of 13 January 1994. Because of this distinction, the appellant claims, that the Court of First Instance examined the merits of its application only in so far as it was directed against the decision of 13 January 1994 whereas, in so far as it was directed against the decision of 19 July 1993, the Court dismissed the application on the ground that it was out of time, which means that the Court did not examine the grounds of annulment put forward in respect of the latter decision and the appellant was thereby deprived of legal protection.

22 The Court of First Instance took the view (paragraph 23) that the Commission's decision of 19 July 1993 was a definitive decision so far as concerned the examination and selection of projects to be supported under the 1993 Thermie programme. It accepted that no re-examination of the projects was undertaken at the end of 1993 and the only question which arose at that stage was whether there were still funds available or whether the projects which had been granted financial support had all been carried out and the available credits thereby exhausted. It also observed (paragraph 23) that, although the Commission stated in its letter to the appellant of 5 August 1993 that it reserved the right to amend its decision, subject to the availability of budgetary credits, it had to be concluded at that time that the appellant's project was not one of the 137 projects selected and, consequently, the Commission had in effect refused the appellant's application for financial support.

23 The abovementioned Commission decisions, that is to say, (1) the decision of 19 July 1993 granting financial support to 137 projects for the promotion of energy technology, which did not include the appellant's project, and (2) the decision in the letter of 13 January 1994 are, as described and correctly characterised in the judgment, two decisions which are distinct from each other.

24 Furthermore, in so far as it has been shown that the appellant had knowledge of the first decision (dated 19 July 1993) on 5 August 1993, the action brought on 17 March 1994 was out of time, as I shall show in detail below.

25 The Court of First Instance therefore rightly considered that there were two distinct decisions of the Commission (7) and that Windpark's action was admissible only in so far as it was directed against the later decision contained in the letter of 13 January 1994, and was out of time in so far as it was directed against the decision of 19 July 1993 refusing the appellant's application for financial support for its project, on the ground that the application was unjustified. Consequently the submissions to the contrary must be rejected as unfounded, while the plea in law must be dismissed as inadmissible in so far as it is sought to obtain a review of the findings of fact by the court of trial. (8)

26 The appellant's assertion that the Commission `was only prepared to grant financial support for a maximum of ECU 918 028' must also be rejected for two reasons. The first, is that this assertion relates to the appraisal of the facts, as found by the court of trial. The second is that the Court of First Instance expressly stated the opposite, as the Commission correctly points out. In particular, the Court of First Instance stated (paragraph 8) as follows: `On 5 August 1993 the Commission informed the [appellant] that its project had been placed on "a supplementary list of projects which may be granted financial support before 31 December 1993 if sufficient budgetary credits become available, particularly if some of the projects which have already been granted financial support have not been carried out". According to an annex to that letter, the maximum amount of financial support for the project had been fixed at ECU 918 028. The Commission emphasised that it was in no way bound by the fact that the project had been placed on the supplementary list and disclaimed all responsibility for any consequences which might ensue from a definitive decision not to grant the applicant financial support.'

27 It is also clear from paragraph 8 of the judgment that the appellant knew, ever since the decision of 5 August 1993, that credits might not be available and that it had to challenge the decision, which damaged its interests. (9) Consequently these submissions merely repeat the appellant's assertions based on facts previously submitted to the Court of First Instance, which found them to have no basis, and in essence the appellant is asking for them to be re-examined, which is inadmissible in the context of an appeal. (10)

28 The first plea in law must therefore be dismissed in its entirety.

B - Misapplication of Article 173, fifth paragraph, of the Treaty

29 Under its second plea in law, the appellant claims that the Court of First Instance misapplied Article 173, fifth paragraph, of the Treaty. More particularly, it contends that, even if it were accepted that, by the decision of 19 July 1993, the Commission rejected the entire application for financial support, the two-month period for bringing proceedings was complied with as a result of the registration of the application on 17 March 1994. In support of that assertion, the appellant also claims that there is a contradiction in the statements of the Court of First Instance and specifically between paragraphs 9 and 28 of the judgment.

30 The appellant points out that, as stated in paragraph 9 of the contested judgment, it had requested further information by fax of 9 August 1993. The Commission did not reply. According to the appellant, the Commission ought to have realised from the fax that the appellant had not understood the exact meaning of the letter of 5 August 1993 and the Commission ought to have replied in order to explain the precise context of its decision. The first reply from the Commission to the appellant's request was given in the letter of 13 January 1994, which is therefore the date on which the period prescribed for initiating proceedings began to run.

31 In addition, the appellant claims that, as the decision was not published and was not notified to the appellant either, time began to run from the moment at which it learned of the decision, that is to say, from the letter of 13 January 1994. It considers that Article 173, fifth paragraph, of the Treaty must be interpreted strictly and therefore the period prescribed for challenging a measure begins to run at the time when a person who is individually concerned has actual knowledge of it, not when he had the opportunity to learn of it. According to the appellant it is in conformity with the rule of law not to require of the person concerned that he endeavour to explore the decision and the grounds on which it is based, but instead to send the decision to him at his request. (11)

32 Now let us now consider whether there was a misapplication of Article 173, fifth paragraph, of the Treaty, that is to say, what was the beginning of the period allowed for challenging the Commission's decision.

33 It should first be noted that the Court of Justice has held on several occasions that, failing publication or notification, the period for bringing an action can begin to run only from the moment when the party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which is based, in such a way as to enable it to exercise its right of action. (12) The Court has also consistently held that `it is for the party which has knowledge of a decision concerning it to request the whole text thereof within a reasonable period'. (13)

34 In view of this settled case-law, I consider that the Court of First Instance was not mistaken in law when it found (14) that the appellant was aware from August 1993 of circumstances which ought to have led it to take action, as it had been informed that its project had been placed on a supplementary list and that this entailed no obligation on the Commission's part (paragraph 8).

35 With regard to the existence of contradictions in the contested judgment, there is in my opinion, as the Commission rightly observed, no contradiction between paragraphs 9 and 28. More specifically, in paragraph 28 the Court of First Instance found that the appellant `did not take the opportunity either to request the full text or an individual explanation with respect to the decision to exclude its project from the 137 projects which were awarded financial support in 1993'.

36 In paragraph 9 the Court of First Instance stated that `by fax of 9 August 1993, addressed to the Commission, the [appellant] requested further information', but that it did not ask for the full text of the decision of 19 July 1993. Furthermore, the appellant did not react to the communication in the Official Journal of the European Communities, (15) nor did it ask for an individual explanation of the reason for which its project was included on the supplementary list but could only receive financial support `if sufficient budgetary credits become available, particularly if some of the projects which have already been granted financial support have not been carried out'. (16) In addition, the Court of First Instance expressly states (paragraph 9) that `the [appellant] requested further information and authorisation to commence work'. In other words, although the appellant was aware of the existence of the decision of 19 July 1993, which allegedly damaged its interests, it did not ask for the text of the decision. (17)

37 Consequently the appellant's submissions concerning contradictory reasoning in the contested judgment must be rejected as unfounded also as regards this part of the plea in law under consideration.

38 The second plea in law must therefore be dismissed in its entirety.

C - Breach of the obligation to state reasons

39 Under its third plea in law, the appellant asserts that the 1993 budget for the Thermie programme was ECU 174 000 000, of which ECU 129 000 000 was available for projects for the promotion of energy technology. The appellant then refers to the introduction to the Thermie report, which shows that in 1993 financial support totalling ECU 140 000 000 was granted to 139 projects, while ECU 34 000 000 was allocated to accompanying measures. As the decision of 19 July 1993 granted approximately ECU 129 000 000 to 137 projects, the appellant concludes that approximately ECU 11 000 000 was made available without being allocated to specific projects.

40 Moreover, the appellant contends that the introduction to the Thermie report does not distinguish between dissemination projects under Article 2 of the Thermie Regulation and targeted projects under Article 4. The appellant adds that no such distinction became apparent in the procedure before the Court of First Instance or in the budget programme. It claims that in any case, even if the budget funds available after 19 July 1993 had been granted to targeted projects, the Commission ought to have compared these projects with those of the appellant for the purpose of making a decision and ought to have stated the reasons for its choice.

41 The appellant also observes that the grounds of the Commission's decision of 19 July 1993 rejecting its application in its entirety remain unknown and that this justifies annulment of the decision. It also claims that the Commission's letter of 13 January 1994 does not give the full text of the decision and that the reason for the decision, that is to say, exhaustion of the credits, is erroneous because until 31 December 1993 the Commission had ECU 10 817 552 available for certain targeted projects. From this the appellant concludes that the Court of First Instance ought to have found that the decision contained in the letter of 13 January 1994 did not state the reasons on which is was based.

42 In support of its contention that the Commission's assertion that all the credits available after 19 July 1993 for the Thermie programme were granted to certain targeted projects is mistaken, the appellant refers to a letter of 29 April 1996 from Commissioner Papoutsis to the European Parliament. (18)

43 The appellant adds that, as the introduction to the Thermie report shows that, contrary to the decision of 19 July 1993, the Commission granted financial support totalling ECU 2 189 356 in the wind energy sector to four projects on the supplementary list, that is to say, not targeted projects, without the participation of the Thermie Committee, the Court of First Instance was wrong in finding that this amount formed part of those granted to targeted projects. (19)

44 The appellant further submits that, in view of Mr Papoutsis' letter to the European Parliament, the letter of 13 January 1994 constituted notification to the appellant of the decision of 13 December 1993, which is not in the file. For this reason also, the decision of 13 December 1993 (20) does not state the reasons on which it is based and constitutes a misuse of powers.

45 I shall consider the appellant's submissions concerning this plea in law in sequence and shall divide them into three parts. First, I shall deal with the submissions concerning the extent of the Commission's obligation to state the reasons for its decision of 13 January 1994 and, next, the manner in which the Court of First Instance applied the provisions in question. I shall then look at the question of a mistake in law with regard to the application of the Thermie Regulation by the Court of First Instance, which refers to targeted projects receiving financial support and, finally, I shall examine the question whether the Court of First Instance made a mistake in the presentation of facts and in its assessment of a fundamental factual allegation, which would mean that the judgment must be set aside.

(a) Scope of the obligation to state reasons

46 The plea in law concerning breach of the obligation to state reasons is admissible only in so far as it is directed at the judgment of the Court of First Instance, not at the decision of the Commission which is at issue. However, in examining this plea it is necessary, as I have said with regard to the previous point, to consider the scope of the obligation to give full and correct reasons for the Commission's decision. I should like to make the following observations in this respect.

47 First, under Article 190 of the Treaty, acts adopted by the Community institutions must state the reasons on which they are based. However, as the Court has consistently held, (21) the statement of reasons required by Article 190 of the Treaty `must be appropriate to the nature of the measure in question. It must show clearly and unequivocally the reasoning of the institution which enacted the measure, so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. It has also been held that the statement of reasons for a measure is not required to specify the matters of fact or of law dealt with, provided that it falls within the general scheme of the body of measures of which it forms part.'

48 The Court has also consistently held (22) that `the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given, and the need for information of the undertakings to whom the measure is addressed or of other parties to whom it is of direct and individual concern within the meaning of the second paragraph of Article 173 of the Treaty'.

49 In the present case, the mere fact of participating in a programme for financial support, such as the Thermie Programme, by submitting an application for such support, gives rise to no rights or even advantages for the applicant, provided always that the selection procedure laid down in each case was followed in full and that the application was examined objectively and impartially. This also applies where such an application is refused, which leaves unchanged the legal situation of the person concerned. This assuredly affects the obligation to state sufficient reasons. Fulfilment of that obligation presupposes that the applicant was informed that his proposal had been examined and had been the subject of a decision under the prescribed procedure. The appellant's claim that the statement of reasons must also show all the reasons for which other proposals were preferred to its own is totally unfounded. (23) From this viewpoint, therefore, the contested judgment suffers from no defect which would justify setting it aside.

50 I consider that the Commission's obligation duly to state the reasons for the decision of 13 January 1994, which was originally validly contested before the Court of First Instance, was also fulfilled because the present case relates to a selection procedure with a large number of participants, and the selection criteria were known in advance by those concerned. Furthermore, an advisory committee (the Thermie Committee), which was required to give a favourable opinion on a grant of financial support to only some of the projects, took part in the procedure for granting such support. In principle the Commission had to follow the Committee's opinion in accordance with the Thermie Regulation (Article 10(1)), (24) and the results of the competition were published, which obviates any need for an individual statement of detailed reasons for the decision to reject an application for financial support. (25) Clearly this does not deprive applicants of the right to request the results of the selection procedure, in accordance with the notice published in the Official Journal of the European Communities.

51 In view of the foregoing, I consider that the Court of First Instance was not mistaken in law, since it found (paragraph 45) that the Commission's letter of 13 January 1994 to the appellant contained a sufficient and proper statement of reasons, namely, the exhaustion of the funds available at that time, so that no aid could be granted for the appellant's project. The Court of First Instance therefore rightly rejected as unfounded the appellant's plea alleging inadequacy of the statement of reasons in so far as it concerned the letter of 13 January 1994.

(b) Misapplication of the Thermie Regulation

52 In this connection the Commission observes that the four projects which received financial support by way of derogation from the decision of 19 July 1993 were placed on the supplementary list after the opinion of the Thermie Committee and, unlike the appellant's project, provided for `an association of at least two independent undertakings established in different Member States'. Consequently, they were to be given preference under Article 6(3)(a) of the Thermie Regulation. The Commission further submits that the nature of the appellant's project, which was a dissemination project, (26) did not permit it to be financed with funds made available for `specific projects'. (27) Furthermore, according to the Commission, the distinction between projects receiving financial support under Articles 2 and 4 of the Thermie Regulation follows from that regulation itself, and the classification of a project under one of those articles cannot be questioned.

53 According to the Commission, the decision of 13 December 1993, which related to targeted projects, was preceded by an invitation to tender for a targeted project concerning hot gas cleaning. (28) This decision allocated ECU 12 653 339 for carrying out targeted projects. As the appellant's project was a dissemination project, it did not receive financial support.

54 On this point the Court of First Instance states (paragraph 44) that `in order to arrive at the decision in the letter of 13 January 1994, the only question for the Commission was whether there were still budgetary funds available or whether the projects which had been granted financial support had all been carried out and the available credits thus exhausted. Although funds were indeed still available under the budget for the Thermie programme in July 1993 - after the decision had been taken to finance certain projects - according to the Commission, they had been awarded during the last months of 1993 to certain "targeted" projects. Consequently, at the end of 1993 there were no longer any funds available'.

55 In view of the foregoing, I consider that there was no misapplication of a rule of substantive law (the Thermie Regulation) as the Court of First Instance referred to the distinction between targeted projects which had finally received financial support, and other projects which were not targeted, such as the appellant's. Therefore the appellant's submissions to the contrary must be rejected as unfounded.

(c) Mistake with regard to the facts

56 First of all, as regards the statement of Commissioner Papoutsis to which the appellant refers in its reply, I do not think this can be taken into account, irrespective of whether the document cited by the appellant is among the documents it produced and whether there was a special meeting of the Parliament in April 1996 concerning the Thermie programme, as the Commission casts doubt on these matters. In particular, although Mr Papoutsis' statement constitutes a new factual element introduced belatedly, being raised for the first time at the appeal stage, it cannot be taken into account because in an appeal the powers of the Court of Justice are confined to reviewing the findings of law on the pleas argued before the Court of First Instance. (29) In addition, as the Court has consistently held, the appraisal by the Court of First Instance of the evidence put before it does not constitute (save where the clear sense of that evidence has been distorted) a point of law which is subject, as such, to review by the Court of Justice. (30)

57 Consequently the appellant's submissions on this point are inadmissible.

58 The appellant also asserts that there was an unallocated total of ECU 10 817 552. This figure was not referred to expressly in the judgment of the Court of First Instance, but that Court may have taken it into account when it observed (paragraph 44) that there were still budgetary funds available. I do not think that the fact that this figure is not mentioned in the judgment is sufficient to prove that the judgment gave an incorrect account of the facts. This submission must therefore be rejected as inadmissible as it relates to the appraisal of facts, which is outside the power of review of the appeal court.

59 Finally, the appellant claims that the contested judgment gives no indication of the action taken on the appellant's letter sent on 9 August 1993 to the Commission because, in actual fact, no reply was given. Again, the Court of First Instance does not specify precisely for what reasons and in what amount the Commission granted ECU 10 817 552 to certain projects, or why the Commission did not grant the appellant ECU 918 028, as the Commission had decided in the letter of 5 August 1993 to the appellant.

60 As the Commission correctly points out, the Court of First Instance observed (paragraphs 7 and 24 of the judgment) that a brief communication concerning the decision of 19 July 1993 was published in the Official Journal of the European Communities (31) and notified to the appellant by letter of 5 August 1993.

61 In view of the foregoing, once again I do not consider that the abovementioned submission by the appellant shows that the judgment is mistaken in that it did not assess an essential factual submission which, supposing it to have been true, would have led to the appellant's application being allowed. That submission must be rejected. Otherwise, one would be drawn into re-examining the facts of the case, which would be contrary to the principles of the appeal procedure.

62 In view of the foregoing, the third plea in law must be dismissed in its entirety.

D - Infringement of the appellant's right to be heard

63 The appellant claims that any person directly and individually concerned by a decision has, by virtue of certain fundamental principles of Community law, a right to be heard so that he can make known his views on the matters of law or fact which have been taken into account to his detriment and which form the basis of the disputed decision to refuse his application. Relying on the Court's case-law, (32) the appellant submits that the right to be heard must be accorded `irrespective of any practical difficulties'.

64 According to the appellant, the Court of First Instance was wrong in holding that the Commission could refuse to hear the persons concerned by a procedure for obtaining financial support, the conditions of which had been previously published, so that it was for those persons themselves to assess, with regard to submitting an application for that purpose, whether they fulfilled the conditions for obtaining support.

65 Thus the appellant observes that, as the trial court found, the appellant's project was entered on the supplementary list and fulfilled the conditions for receiving financial support, like the other 137 projects which were finally selected. The appellant added at the hearing before the court that, if the Commission had given it an opportunity to be heard, it could have stated the reasons which would have led it (the Commission) to grant financial support to the appellant's project.

66 The appellant submits that the Court of First Instance made an error of assessment in finding, on the ground that the appellant did not request further information, that there was no foundation for the claim that its right to be heard was infringed (paragraph 49 of the judgment), although in paragraph 9 the Court of First Instance found that further information had been requested in the fax of 9 August 1993.

67 Finally, according to the appellant, the Court of First Instance was wrong not to take account of the ECU 10 817 552 which the Commission granted to targeted projects between 19 July and 31 December 1993, a matter on which the appellant also ought to have been heard.

68 The appellant's arguments raise the question of the extent to which the persons concerned are entitled to be heard before the adoption of a decision granting financial support to certain projects, to the exclusion of other projects, a problem which also arises in connection with support for the Thermie programme.

69 In my opinion, the appellant's arguments, as the Commission has rightly pointed out, are not such as to call into question the legal validity of paragraphs 48 to 50 of the contested judgment.

70 With regard to the plea that the appellant's right to be heard was infringed, (33) this was dismissed by the Court of First Instance on the following grounds (paragraph 48): `The Court notes first that the Commission explained the procedure for the submission of projects for financial support under the Thermie programme in the information brochure referred to in the communication inviting interested parties to submit projects, published in the Official Journal on 16 July 1992 ... That document states: "Once the proposal has been submitted, proposers are invited not to submit any supplementary information to the Commission unless specifically requested by the Commission services". Furthermore, it is in accordance with the procedure in financial support programmes for candidates for such support not to be given a hearing during the selection procedure, which is conducted on the basis of the documentation submitted by them. That procedure is appropriate in situations where hundreds of applications must be evaluated and it therefore does not constitute an infringement of the right to a hearing.'

71 The Court of First Instance continued as follows (paragraph 49): `... since the [appellant] did not request further information from the Commission following the publication in the Official Journal of 24 July 1993 of the communication regarding the Commission's decision granting financial support to 137 projects or following its letter of 5 August 1993, the Commission was not under a duty to give the [appellant] an opportunity to make known its views before the Commission sent the letter of 13 January 1994. From that point of view also, the right to a hearing has not been infringed.' (34)

72 This assessment by the trial court is correct since, in an administrative procedure for granting financial support and involving a large number of applicants, as in the present case, there is no obligation to give the undertaking concerned (in the present case, the appellant) an opportunity to state its point of view effectively. The procedure in question was not directed against a person (here the appellant) who responded to the invitation to submit projects, and the decision was not taken on the basis of specific criteria connected with the conduct of that person, (35) but on the basis of the application file which it had lodged.

73 Furthermore, in the context of a procedure such as that laid down by the Thermie Regulation, if financial support is not granted to an undertaking, this cannot be regarded as having a significant adverse effect on its interests (36) or, more specifically, it does not adversely affect a legal situation which is favourable to the appellant, so that the institution which issues the decision would have to give it an opportunity to express its viewpoint as a person affected. (37)

74 Finally, in my opinion, this conclusion is dictated by the fact that refusal of an application for financial support does no more than prevent the mere expectation which arises when that application is lodged from becoming a fully fledged right to receive such support which, if it were infringed, would make it necessary to observe the abovementioned principle. In other words, the refusal of such an application does not give rise to a legal situation unfavourable to the operator concerned and does not adversely affect him in such a way that the institution adopting the decision would have to give him an opportunity to state his views as a person affected.

75 In view of the foregoing, I think that the present case differs clearly from the one which was decided by the judgment of the Court of First Instance in Case T-450/93 (38) and then the judgment of the Court of Justice in Commission v Lisrestal and Others, (39) which was given on the Commission's appeal against the judgment of the trial court. It is precisely because the premiss chosen is wrong that the judgment in that case cannot be transposed to the present case and therefore I do not consider that a mistake has been shown to exist in the contested judgment.

76 More precisely, in Case C-32/95 P, the Court held (40) that `observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceeding in question ... That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views'. Consequently, where the Commission intends to reduce financial assistance originally granted, the beneficiary must be placed in a position in which it can effectively make known its views on the matters taken into account to its detriment in the grounds for the decision reducing the assistance. (41)

77 In the present case, as the Court of First Instance correctly points out (paragraph 50), no financial support was granted to the appellant, which had merely been placed on a reserve list of possible beneficiaries of Community financial support.

78 In view of the foregoing, the fourth plea in law must be dismissed in its entirety.

E - Misuse of powers

79 Under the fifth plea in law the appellant submits in essence that the Court of First Instance was mistaken in law in not annulling the Commission's decision although, by adopting the decision, the Commission had misused its powers and also abused its discretion.

80 More specifically, the appellant contends that the Court of First Instance was wrong in holding that the Commission had made a correct assessment of the appellant's project because it followed the opinion of the Thermie Committee. The appellant points out that the Committee met before the decision of 19 July 1993 was taken. Since the Court of First Instance had ruled that it was inadmissible to examine events which preceded that date, it ought to have verified whether the Commission misused its powers by granting financial support to other applicants in the period from 19 July to 31 December 1993. Since financial support was accorded to targeted projects (paragraph 44 of the contested judgment) and not to projects on the reserve list, the Thermie Committee was not involved. The appellant submits that, since the Commission put forward no grounds for acting in this way, it misused its powers, although it enjoys a wide discretion. According to the appellant, this ground of appeal relates to the fact that the Court of First Instance infringed the principle that a discretion must be exercised before a decision is adopted, and here it was not.

81 The appellant adds that even though the Commission espoused the opinion of the Thermie Committee, it cannot be maintained that the latter took its decision without wrongly exercising its discretion or, if the discretion was properly exercised (which has not been proved), that no other decision could have been taken.

82 Furthermore, according to the appellant, the Court of First Instance committed an error in law in failing to take account of the fact that the independent technical experts of the Commission who placed the project on the reserve list (paragraph 56 of the contested judgment) may, as officials of the Member States, have allowed themselves to be influenced by national economic interests.

83 On this point the Court of First Instance found (paragraph 58) that `the [appellant] has not adduced any matter of fact or law showing that the assessment of its project by the Commission, in conjunction with the Thermie Committee, was vitiated by manifest error or misuse of power'.

84 Let me begin with two observations. First, the Court of First Instance rightly took the view, as I have already said, that only the action against the decision in the letter of 13 January 1994 was admissible. Second, it found that the appellant had not produced to it in good time and in due form the relevant evidence, which had to be sufficiently secure from both the legal and factual viewpoints to show clearly, first, that the Commission had misused its powers, that is to say, with the exclusive or main purpose of achieving an end other than that stated, (42) and, second, had exercised its discretion improperly.

85 I consider that such evidence cannot be adduced in appeal proceedings because that would lead the Court of Justice to re-examine the merits of the case, which falls outside the limits of review in appeal proceedings.

86 The fifth plea in law must therefore be dismissed.

F - Infringement of Articles 175, third paragraph, 173, fourth paragraph, and 176 of the Treaty

87 Under its sixth plea in law the appellant contends that Articles 175, third paragraph, 173, fourth paragraph, and 176 of the Treaty were infringed because the Court of First Instance did not take account of the differences existing between the actions based on each of those articles.

88 More specifically, the appellant maintains that the Commission did not duly give a decision on the application for financial support limited to ECU 918 028 which the appellant submitted on 27 November 1992. The appellant claims that it is entitled to rely on Article 175, third paragraph, of the Treaty. The Court of Justice must take account of the fact that the decision of 19 July 1993 confirmed that the appellant's project could receive support because the project was on the reserve list. Furthermore, it has been proved that the Commission still had ECU 10 817 552 available in the second half of 1993 and this was granted to projects on the reserve list. Consequently, the Court of Justice will have to find that the Commission must take a decision in this respect and the Court must state the factors determining that decision.

89 I have already proposed that all the other grounds for annulment be rejected, either because they are inadmissible or unfounded. It is unnecessary to examine what may be the consequences of a decision setting aside the contested judgment.

90 I should merely like to observe that, in deciding to reject the corresponding claim by the appellant (paragraph 61), the Court of First Instance applied settled case-law of the Court of Justice (43) when it held, on the appellant's claim that the Court should direct the Commission to `take a new decision in accordance with the legal principles laid down by the Court of Justice', that `this Court is not entitled, when exercising judicial review of legality, to issue directions to the institutions'. The Court of First Instance added, correctly, that `it is for the administration concerned to adopt measures to implement a judgment given in proceedings for annulment'.

91 Consequently this last plea appeal must also be dismissed.

V -

92 Having regard to all the foregoing considerations, I propose that the Court should:

(1) dismiss the appeal and

(2) order the appellant to pay the costs.

(1) - Case T-109/94 Windpark Groothusen v Commission [1995] ECR II-3007.

(2) - OJ 1990 L 185, p. 1.

(3) - OJ 1992 C 179, p. 14.

(4) - The Commission thus established, pursuant to Article 9(2) in conjunction with Article 10(1) of the Thermie Regulation, the priorities for invitations to submit projects in accordance with the so-called `committee' procedure.

(5) - OJ 1993 C 200, p. 4.

(6) - As enshrined in the combined provisions of Article F(2) of the Treaty on European Union, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 173, fourth paragraph, of the Treaty. In addition, the appellant relies on the order of 29 January 1997 in Case C-393/96 P(R) Antonissen v Council and Commission [1997] ECR I-441, paragraph 36, and the judgment in Case C-395/95 P Geotronics v Commission [1997] ECR I-2271.

(7) - It should be noted that this distinction was originally formulated by the appellant itself, as appears from paragraph 17 of the judgment: `in its application, the [appellant] sought only annulment of the Commission's decision of 13 January 1994. However, the [appellant] indicated in its reply that, in so far as its complaints relate to earlier decisions taken by the Commission, its action should also be regarded as contesting those decisions, particularly the decision of 19 July 1993'.

(8) - See the judgments in Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 12, and Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 66, and the orders of 17 September 1996 in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40, and 16 September 1997 in Case C-59/96 P Koelman v Commission [1997] ECR I-4809, paragraph 31.

(9) - On this point the Court of First Instance also observed as follows (paragraph 27): `The [appellant] had been informed of the existence of the decision selecting the projects to be awarded financial support for 1993 since August 1993, when it received the Commission's letter of 5 August 1993. In response to an oral question put to it by the Court, the [appellant] admitted that at the time it had neither sought the full text of the decision nor an individual explanation, inter alia since it erroneously considered its situation to be promising. At the hearing, the applicant also explained that it had not understood that the letter of 5 August 1993 amounted to a refusal, since the Commission had told it that its project had been placed on a "supplementary" list. On the contrary, it believed that financial support was not ruled out. The Commission, for its part, asserted at the hearing that it would have provided an individual explanation if the [appellant] had expressly asked for one.'

(10) - See, for example, the judgment in Case C-73/95 P Viho v Commission [1996] ECR I-5457, paragraphs 25 and 26, and the orders of 26 April 1993 in Case C-244/92 P Kupka-Floridi v ESC [1993] ECR I-2041, paragraphs 7 to 11; of 26 September 1994 in Case C-26/94 P X v Commission [1994] ECR I-4379, paragraphs 10 to 13, and Koelman v Commission, cited in footnote 8, paragraph 52.

(11) - On this point the appellant refers to the judgment in Case C-143/95 P Commission v Socurte and Others [1997] ECR I-1. It also relies on the judgment in Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 19, in which the Court of Justice referred to its settled case-law that what is merely Council practice (and therefore, according to the appellant, Commission practice also) cannot derogate from the rules laid down in the Treaty, and cannot therefore create a precedent binding on the Community institutions with regard to the correct legal basis.

(12) - See, for example, the judgments in Case C-180/88 Wirtschaftsvereinigung Eisen- und Stahlindustrie v Commission [1990] ECR I-4413, paragraph 22; Case 236/86 Dillinger Hüttenwerke v Commission [1988] ECR 3761, paragraph 14, and Commission v Socurte, cited in footnote 11, paragraph 31, and also my Opinion in Case C-309/95 Commission v Council, pending, paragraph 30 et seq.

(13) - See, for example, the judgments cited in footnote 12, Wirtschaftsvereinigung Eisen- und Stahlindustrie v Commission, paragraphs 22 to 24, and Dillinger Hüttenwerke v Commission, paragraph 14, and the order of the Court of Justice of 5 March 1993 in Case C-102/92 Ferriere Acciairie Sarde v Commission [1993] ECR I-801, paragraph 18.

(14) - See paragraph 27 of the judgment, reproduced in footnote 9.

(15) - Cited in footnote 5.

(16) - Paragraph 8 of the contested judgment.

(17) - As the Court of First Instance admits (paragraphs 3 and 48), the Commission's services had available a form, cited by the appellant, which contains, first, details of the procedure for the submission of proposals and, second, information on the eligibility conditions, selection criteria and other relevant information, and adds that no interested party was permitted to incur expenditure before the Commission takes a decision on financial support.

(18) - According to the appellant, this letter bears the reference 0627/96 FR. As cited by the appellant, the letter states as follows: (a) after a favourable opinion from the Thermie Committee, the Commission, by decision of 19 July 1993, made available ECU 129 180 000 for the construction of projects promoting technologies in the energy sector. (b) In the decision of 13 December 1993 the Commission made available ECU 12 980 000 for the implementation of projects. (c) In 1993 ECU 138 000 000 were made available for the implementation of projects. (d) Subsequently, by decision of 13 December 1993, three projects on the supplementary list and three projects on which the Member States had agreed in the course of the written procedure provided for by Article 10(1) of Regulation No 2008/90 were given financial support in lieu of the projects on the original list of abandoned projects.

(19) - At the hearing the appellant stated that, in addition to the 137 projects for which financial support was originally granted by the decision of 19 July 1993, a total of 14 projects were finally granted support.

(20) - In its reply the appellant, no doubt in error, refers to the decision of 13 July 1993.

(21) - See, for example, Case C-353/92 Greece v Council [1994] ECR I-3411, paragraph 19; Joined Cases C-63/90 and C-67/90 Portugal and Spain v Council [1992] ECR I-5073, paragraph 16, and Case C-465/93 Atlanta Fruchthandelsgesellschaft and Others [1995] ECR I-3799, paragraph 16.

(22) - See Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19.

(23) - The disclosure of such comparisons with other undertakings is perhaps also a breach of the obligation of professional secrecy within the meaning of Article 214 of the Treaty: see Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraphs 26 to 28, and also Netherlands and Leeuwarder Papierwarenfabriek v Commission, cited in footnote 22, paragraph 27.

(24) - Where the authority which makes the decision has a discretion, the obligation to state reasons is stricter than where the authority has a non-discretionary power: see the Opinion of Advocate General Lagrange in Case 66/63 Netherlands v High Authority of the ECSC [1964] ECR 533.

(25) - I would recall that the Court has stated that, where an official is recruited following a competition, the administration is not obliged to give the reasons for its decision in relation to the unsuccessful candidates: see Case 16/64 Rauch v Commission [1965] ECR 179. In the judgment in Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 27, concerning the reasons for the decisions of a selection board in competitions with a large number of candidates, the Court has also stated that a selection board may, as a first stage, be allowed to send candidates information only on the criteria and the results of selection, and provide detailed explanations only at a later stage and to candidates who expressly request them. See Case 89/79 Bonu v Council [1980] ECR 553, paragraph 6; Case 225/82 Verzyck v Commission [1983] ECR 1991, paragraphs 16 and 17; and Case 225/87 Belardinelli and Others v Court of Justice [1989] ECR 2353, paragraph 7. See also the judgment in Case C-213/87 Gemeente Amsterdam and VIA v Commission [1990] ECR I-221, in which the Court held that `the conciseness of the statement of reasons for the decision whereby the Commission refused assistance from the European Social Fund for a vocational training foundation is an unavoidable consequence of the processing by computer of several thousand applications for assistance upon which the Commission must adjudicate within a short period. A more detailed statement of reasons in support of each individual decision would therefore be likely to compromise the rational and efficient allocation of financial assistance from the Fund'.

(26) - Article 2(2)(b) of the Thermie Regulation defines dissemination projects as `projects designed to promote with a view to their broader utilisation within the Community, either under different economic or geographical conditions or with technical modifications, innovatory techniques, processes or products which have already been applied once but, owing to residual risk, have not yet penetrated the market'.

(27) - Article 4 of the Thermie Regulation defines `specific projects' (`targeted projects') as follows: `whenever it appears to be necessary, and in particular where a need is not being met or where significant technological advance could be achieved through cooperation between persons or undertakings in at least two Member States, the initiative may be taken to encourage or coordinate the setting-up of specific projects, called "targeted projects"'(emphasis added).

(28) - OJ 1993 C 171, p. 21.

(29) - See, for example, the judgment in Commission v Brazzelli Lualdi and Others, paragraph 59, and the order in San Marco v Commission, paragraph 49, both cited in footnote 8.

(30) - See, for example, Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraphs 10 and 42; the order in San Marco v Commission, cited in footnote 8, paragraph 39, and the order of 16 October 1997 in Case C-140/96 Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 26.

(31) - See the communication cited in paragraph 10.

(32) - See Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373.

(33) - The Thermie Regulation itself expressly provides that the procedure concerned is entirely a written procedure (see Article 8).

(34) - See also paragraph 50 of the judgment.

(35) - See Case C-170/89 BEUC v Commission [1991] ECR I-5709, paragraphs 21 and 22, in which the Court held that respect for the right to a fair hearing in the context of an anti-dumping and anti-subsidy proceeding did not entail access to the non-confidential documents relating to the proceeding, if the proceeding could not result in a measure adversely affecting the person seeking access, in that case the European Office of Consumer Unions (BEUC), as no allegation had been made against it.

(36) - In other words, in the present case not only can the procedure not lead to a sanction against the appellant, but it has no other unfavourable consequences for it; see also Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, paragraph 15, relating to the right to a fair hearing in the context of administrative anti-dumping procedures and the obligation of the Community institutions diligently to provide information for the undertakings concerned.

(37) - This is a separate question from the question whether the conditions for initiating proceedings against the decision are fulfilled under Article 173, fourth paragraph, of the Treaty.

(38) - Lisrestal and Others v Commission [1994] ECR II-1177.

(39) - See the judgment cited in footnote 32.

(40) - See paragraph 21. See also Case C-135/92 Fiskano v Commission [1994] ECR I-2885, paragraph 39, and Joined Cases C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565, paragraph 44.

(41) - As the Court of First Instance stated in Lisrestal and Others v Commission, cited in footnote 38. At the appeal stage (Commission v Lisrestal and Others, cited in footnote 32, paragraphs 21 to 38), the Court of Justice stated that this assessment was not mistaken in law.

(42) - See, for example, United Kingdom v Council, cited in footnote 11, paragraph 69, and Case C-156/93 Parliament v Commission [1995] ECR I-2019, paragraph 31.

(43) - Cf. the judgment in AKZO Chemie v Commission, cited in footnote 23, paragraph 23.