Keywords

Summary



Keywords

++++

1. Economic and social cohesion ° Structural intervention ° Improvement of the processing and marketing conditions for agricultural products ° Selection criteria for investments eligible for Community assistance ° Application by the Commission of a criterion not published in the prescribed manner ° Breach of the principle of legal certainty

(Council Regulations Nos 4253/88, Art. 29, and 866/90, Art. 8(3); Commission Decision 90/342)

2. Non-contractual liability ° Conditions ° Actual and certain damage caused by an illegal act ° Annulment of a Commission decision unlawfully rejecting, by virtue of the application of an improperly adopted criterion, an application for Community assistance ° Existence of actual damage conditional on the eligibility of the application in the light of the other criteria laid down by the relevant provisions ° Need for an examination in the context of compliance with the judgment ordering annulment ° Premature nature of the claim for damages

(EC Treaty, Art. 215, second para.)

Summary

1. According to the wording of Article 8(3) of Regulation No 866/90 on improving the processing and marketing conditions for agricultural products, the selection criteria applying to investments eligible for Community assistance by the EAGGF in the context of actions designed to implement economic and social cohesion are to be adopted in accordance with the procedure laid down in Article 29 of Regulation No 4253/88, and the decision thus adopted is to be notified to the Member States and published in the Official Journal of the European Communities.

By rejecting an investment project submitted by an undertaking on the ground that it did not fulfil a criterion relating to the annual production volume which is not referred to in Decision 90/342 adopted pursuant to Article 8(3) aforesaid, and which was neither adopted in accordance with the procedure laid down in Article 29 aforesaid nor published in the Official Journal, the Commission has infringed the principle of legal certainty and the right of the undertakings concerned to be informed, before submitting applications for financing, of the precise criteria applied in the selection of projects, a fortiori since it created further confusion for the undertakings concerned by publishing, shortly after the adoption of Decision 90/342, a regulation referring to other criteria the purpose of which was not made sufficiently clear. Consequently, the decision rejecting the application is unlawful and must be annulled.

2. In the context of the non-contractual liability of the Community, the damage for which compensation is sought must be actual and certain.

Although the unlawfulness of a Commission decision illegally refusing, by virtue of the application of an improperly adopted criterion, an application for Community assistance not only justifies the annulment of the decision but is also such as to render the Community liable, that liability can only in fact be incurred once the actual damage suffered by the undertaking concerned has been established. To that end, it is incumbent on the Commission, in the context of the measures which compliance with the judgment ordering annulment involves, to examine whether, once the criterion criticized by the Court has been discarded, the application in question in fact fulfils the other conditions laid down by the relevant provisions for the grant of Community assistance. Until the results of that examination are known, any claim for damages will be premature.