EN Official Journal of the European Union C 46/15

Appeal brought by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) of 19 September 2012 in Case T-265/08 Federal Republic of Germany v European Commission, lodged on 29 November 2012

(Case C-549/12 P)

2013/C 46/29

Language of the case: German

Parties

Appellant: Federal Republic of Germany (Represented by: T. Henze, acting as Agent, and by U. Karpenstein and C. Johann, Rechtsanwälte)

The other parties to the proceedings: European Commission, the Kingdom of Spain, the French Republic and the Kingdom of the Netherlands

Form of order sought

The appellant claims that the Court should:

1. set aside the judgement of the General Court of the European Union of 19 September 2012 in Case T-265/08 Federal Republic of Germany v European Commission; interveners supporting the Federal Republic of Germany: Kingdom of Spain, French Republic and Kingdom of the Netherlands, concerning an action for annulment of Commission Decision C(2008) 1690 final of 30 April 2008 reducing the financial assistance granted from the European Regional Development Fund (ERDF) to the Operational Programme in the Objective 1 area of Land Thüringen (Federal Republic of Germany) (1994-1999), in accordance with Commission Decision C(94)1939/5 of 5 August 1994 and annul Commission Decision C(2008) 1690 final of 30 April 2008 reducing the financial assistance granted from the European Regional Development Fund (ERDF) to the Operational Programme in the Objective 1 area of Land Thüringen (Germany) (1994-1999);

2. order the Commission to pay the costs.

Grounds of appeal and main arguments

The subject matter of this appeal is the judgment of the General Court of 19 September 2012 in Case T-265/08 Germany v Commission, whereby the General Court dismissed the Federal Republic of Germany’s application for annulment of Commission Decision C(2008) 1690 final of 30 April 2008 reducing the financial assistance granted from the European Regional Development Fund (ERDF) to the Operational Programme in the Objective 1 area of Land Thüringen (Germany) (1994-1999), in accordance with Commission Decision C(94)1939/5 of 5 August 1994.

The appellant relies on two grounds of appeal:

First, the appellant claims that the General Court breached Article 24(2) of Council Regulation (EEC) No 4253/88, (1) in conjunction with Article 1 of Council Regulation (EC, Euratom) No 2988/95 (2) and the principle of the conferral of limited powers (Article 5(2) TEU, Article 7 TFEU; formerly Article 5 EC), in so far as it erroneously assumed that even administrative errors made by national authorities could constitute ‘irregularities’ justifying the application of financial corrections by the Commission (first part of the first ground of appeal). Even if a financial correction for an administrative error might in principle be conceivable, the judgment under appeal should still be set aside since the General Court unlawfully assumed that even infringements of national law and errors which do not affect the European Union budget could constitute ‘irregularities’ justifying financial corrections (second part of the first ground of appeal).

Secondly, the appellant submits that the General Court also breached Article 24(2) of Regulation No 4253/88, in conjunction with the principle of the conferral of limited powers (Article 5(2) TEU, Article 7 TFEU), inasmuch as it erroneously conferred on the Commission the power to carry out financial corrections on the basis of extrapolation (first part of the second ground of appeal). Even if, in principle, the Commission had such a power to extrapolate, the General Court erred in its confirmation of the nature and manner of its application in the present case. On the one hand, a loss to the European Union budget has not been established as regards, at least, a part of the project at issue. On the other hand, the Commission should not have classified a portion of the errors complained of as systemic errors (second part of the second ground of appeal).

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and other existing financial instruments (OJ 1988 L 374, p. 1).

(2) Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).