Judgment of the Court (Sixth Chamber) of 5 October 1999. - IPK-München GmbH v Commission of the European Communities. - Appeal - Annulment of a decision of the Commission to refuse to pay the balance of financial assistance. - Case C-433/97 P.



European Court reports 1999 Page I-06795



Summary

Parties

Grounds

Operative part



Keywords

Economic and social cohesion - Projects relating to tourism and the environment - Grant of Community financial assistance - Evidence of interference from officials, likely to have an impact on the smooth running of a project funded by the Commission - Onus on the Commission to prove that the actions in question had no impact on the management of the project

Summary

$$Where the recipient of funding for a project for the creation of an information network on ecological tourism in Europe provides evidence that Commission officials have interfered in the management of the project in a manner likely to have an impact on its smooth running, it is for the Commission to show that, notwithstanding the interference in question, the recipient was still in a position to manage the project in a satisfactory manner. The recipient cannot therefore be required to furnish proof that those actions made it impossible for it to engage in proper cooperation with its partners in the project.

Parties

In Case C-433/97 P,

IPK-München GmbH, established in Munich (Germany), represented by H.-J. Prieß, of the Brussels Bar, 13 Place des Barricades, B-1000 Brussels,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (First Chamber) of 15 October 1997 in Case T-331/94 IPK v Commission [1997] ECR II-1665, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by J. Grunwald, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

THE COURT

(Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, J.L. Murray (Rapporteur) and H. Ragnemalm, Judges,

Advocate General: J. Mischo,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 11 March 1999,

gives the following

Judgment

Grounds

1 By application lodged at the Registry of the Court of Justice on 22 December 1997, IPK-München GmbH (hereinafter `IPK' or `the applicant') 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 of 15 October 1997 in Case T-331/94 IPK v Commission [1997] ECR II-1665, in which the Court of First Instance rejected IPK's application for annulment of the Commission's decision of 3 August 1994 to refuse to pay the balance of financial assistance granted to it to support a project to create a database of information on ecological tourism in Europe.

2 The legal background and the facts underlying the appeal are set out in the judgment under appeal in the following terms:

`1 When the Parliament finally adopted the general budget of the European Communities for the financial year 1992, it decided that "a sum of at least ECU 530 000 [would] be used to support an information network on ecological tourism projects in Europe" (OJ 1992 L 26, p. 1, 659).

2 On 26 February 1992 the Commission published in the Official Journal 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". The word "contract" referred to the declaration which the recipient of the aid was required to sign in order for the grant of the aid to take effect.

3 On 22 April 1992 the applicant, an undertaking established in Germany which is active in the field of tourism, submitted a project concerning the creation of a databank on ecological tourism in Europe. That databank was to be called "Ecodata". The applicant was to be responsible for coordinating the project. However, in order to carry out the work, the applicant had to collaborate with 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".

4 According to the proposal, the project would take 15 months. An initial period of four months was to be reserved for the adoption of planning measures (requirements analysis and data determination, database planning, network technical specifications). Subsequently, a period of eight months was to be spent developing the application software and carrying out a pilot phase. The pilot phase was to be accompanied by an initial system evaluation. Finally, three months were to be spent on a final evaluation of the system and system expansion. As regards the pilot phase, the proposal stated that it would consist of system implementation and evaluation in the Member States of origin of the four undertakings participating in the project, namely Germany, France, Italy and Greece. At the end of that phase, the databank was to be accessible to users. As regards the system expansion, the proposal stated that it would involve extension of the databank, in terms of both content and use, to the other Member States.

5 In a letter dated 4 August 1992 the Commission granted ECU 530 000 in aid to the Ecodata 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.

6 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. The declaration stipulated that the latter date was a compulsory time-limit in the context of the budgetary rules of the Communities. Finally, the declaration stated that failure to observe the time-limits laid down for the submission of reports and necessary documents would amount to a renunciation of the right to payment of the balance of the aid.

7 The declaration was signed by the applicant on 23 September 1992 and received by the Commission on 29 September 1992. The first instalment of the aid was not, however, paid to the applicant upon receipt by the Commission of the signed declaration. Following a telephone conversation on this matter between the applicant and the Commission, a new declaration was sent to the applicant on 18 November 1992 by Mr von Moltke, Director General of Directorate-General XXIII responsible for enterprise policy, trade, tourism and social economics. On the basis of that new declaration, which had the same content as the declaration annexed to the letter of 4 August 1992, the first instalment of the aid was paid in January 1993.

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

9 In 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 the two other partners in the project. According to the evidence of the applicant, which is not, as such, disputed by the defendant, Mr Tzoanos suggested during that meeting that the majority of the work be entrusted to 01-Pliroforiki and that the majority of funds be allocated to that undertaking.

10 The applicant was also asked to agree to the participation in the project of a German undertaking, Studienkreis für Tourismus, which had not been mentioned in the proposal for the project but was already involved in an ecological tourism project by the name of "Ecotrans". That participation was discussed, in particular, at a meeting at the Commission on 19 February 1993 during which the Commission insisted on the participation of Studienkreis für Tourismus.

11 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, together with internal investigations concerning the matters for which he had been responsible. The disciplinary procedure resulted in the dismissal of Mr Tzoanos. In contrast, no irregularities were revealed by the internal investigation concerning the administrative procedure resulting in the grant of aid to the Ecodata project.

12 In March 1993 the applicant, Innovence, Tourconsult and 01-Pliroforiki held a meeting to discuss an agreement on the structure of the project and, in particular, the distribution of tasks. That agreement was formally concluded on 29 March 1993.

13 The applicant submitted an initial report in April 1993, a second report in July 1993 and a final report in October 1993 (Annex 12 to the application, volume 1). It also invited the Commission to a presentation of the work which had been carried out. That presentation took place on 15 November 1993.

14 By letter dated 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 twelve 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 4 Member States with 3 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.

..."

15 The applicant expressed its disagreement with the content 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. By letter dated 3 August 1994 the Commission 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 28th 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.

...". '

3 In its action before the Court of First Instance for annulment of the Commission's decision of 3 August 1994, the applicant put forward two pleas in law. The first alleged infringement of the principles of legal certainty and the protection of legitimate expectations. The second plea alleged that the Commission's decision was based on inadequate reasoning.

The judgment under appeal

4 As regards the admissibility of the action, which the Commission disputed on the ground that the applicant failed to comply with the two-month time-limit for initiating proceedings laid down in Article 173 of the EC Treaty (now, after amendment, Article 230 EC), the Court of First Instance pointed out, at paragraphs 24 to 26 of the judgment under appeal, first, that an action for the annulment of a decision which merely confirms a previous decision not contested within the time-limit for initiating proceedings is inadmissible, and secondly that a decision is merely confirmatory of a previous decision if it contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed. The Court held that, where the Commission decides to arrange a meeting with the person to whom a measure is addressed to discuss matters connected with the measure in question, such a step should be regarded as a re-examination, even if the meeting did not reveal any new information and was not such as to prompt the Commission to adopt a different position.

5 As regards the first plea in law, the Court of First Instance held, at paragraphs 38, 40 and 43 of the judgment under appeal, that, in the context of the Community financial assistance granted for the completion of innovative projects in the field of tourism and the environment following a call for proposals with a view to supporting such projects, the obligation to comply with the financial conditions indicated in the decision granting the aid and the obligation actually to carry out the investment constitute essential duties for the beneficiary, and their fulfilment is therefore a condition for the award of Community aid. Thus, where it appears that, by the date fixed for its completion, the work done corresponds only in part, in terms of both quantity and quality, to the project proposed by the recipient of the financial aid and subsidised by the Community, it is reasonable for the Commission, when faced with that inadequate performance, to refuse to pay the balance of the aid.

6 At paragraphs 45 to 47, the Court of First Instance held that the applicant could gain nothing by invoking the principle patere legem quam ipse fecisti, or Selbstbindung, or the principle of the protection of legitimate expectations to obtain payment of the balance of the amount of all the aid initially granted. It also held that the Commission could not be blamed for causing delays in the completion of the project and that, even though the applicant had provided some evidence that one or more officials of the Commission had interfered in the project between November 1992 and February 1993, it had not established at all that this interference prevented it from engaging in proper cooperation with its partners before March 1993. It therefore rejected the applicant's first plea.

7 As regards the second plea in law, the Court of First Instance observed that a decision reducing the amount of financial aid must clearly show the grounds which justify a reduction of the amount of aid initially authorised, since such a decision has serious consequences for the person receiving the aid. The Court held that that requirement was satisfied by a decision which, as in the present case, refers to a document which is already in the possession of the recipient and contains the reasons on which the institution based its decision, those being, in this case, the statement of the conditions under which the aid was granted and the list of shortcomings in the execution of the project. It therefore rejected the second plea and dismissed the application in its entirety.

The appeal

8 In support of its appeal, the applicant relies, essentially, on six pleas in law. By its first plea, it claims that the Court of First Instance failed to fulfil the obligation to state reasons laid down in Article 190 of the EC Treaty (now Article 253 EC) by taking 31 October 1993 as the deadline for submitting the report, without taking account of its observations in that regard. According to the applicant's second plea, the Court of First Instance also failed to give reasons for not taking into consideration Mr Tzoanos's remarks of 19 February 1993. By its third and fourth pleas, the applicant submits that the Court made errors of assessment, first, in that it relied upon facts and findings that were incorrect, and secondly in that it took 31 October 1993 as the deadline for submission of the report. By its fifth plea, IPK alleges that the Court erred in law in its appraisal of the remarks made by Mr Tzoanos on 19 February 1993 and by its sixth and final plea, it alleges that the Court applied the principle of proportionality incorrectly.

9 It is appropriate first to consider the applicant's fourth plea, by which it maintains that, by taking, at paragraph 40 of the judgment, 31 October 1993 as the deadline for submission of the report, the Court of First Instance infringed Community law. The plea is divided into three parts.

10 First, given that the Commission agreed to a period of 15 months for completion of the project and also fixed the starting date for the project at 15 October 1992, the Court of First Instance failed to apply the principles of the law of contract by accepting that, without there being any agreement between the parties on the matter, the deadline for submission of the final report should be fixed at a date earlier than that for completion of the project as initially proposed.

11 Next, the applicant submits that the Court erred in law by requiring it to prove that, before March 1993, the behaviour of certain Commission officials had made it impossible for it to cooperate effectively with its partners and in not holding that, since the Commission had postponed the starting date for the project, its retention of 31 October 1993 as the completion date for the project was also an abuse of power. Furthermore, the Court failed to take account of the interference of DG XXIII in the constitution of the consortium and how the work was to be shared between its members.

12 Lastly, the Court of First Instance failed in its duty to investigate the case by declining the applicant's request for production of documents by DG XXIII.

13 The Commission contends that the applicant's arguments are based on the mistaken assumption that the starting date for the project was postponed to 15 October 1992. It argues that the Court of First Instance, far from requiring evidence to be furnished to prove a negative, merely referred to the fact that the applicant was unable to explain the reasons which prevented it from completing the project swiftly and according to programme, on the basis of the offer which it had itself submitted.

14 It is appropriate to consider first the second limb of the plea, to the effect that the Court of First Instance misdirected itself as to the significance of the prohibition on the abuse by the institutions of their powers, and that such abuse resulted from the fact that, between November 1992 and February 1993, certain Commission officials behaved in such a way as to prevent the applicant from engaging in proper cooperation with its partners before March 1993.

15 In this connection, its 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 of the judgment under appeal. 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.

18 Thus, without its being necessary to examine its other two branches, the fourth plea must be held to be well founded.

19 The Court must, therefore, grant the form of order sought by the applicant and set aside the judgment under appeal in so far as it dismissed the applicant's claim for annulment of the Commission's decision of 3 August 1994 to refuse to pay the balance of financial assistance granted to support a project to create a database of information on ecological tourism in Europe, and ordered the applicant to pay the costs. There is no need for the Court to consider the other pleas raised in the appeal.

Referral of the case to the Court of First Instance

20 Pursuant to the first paragraph of Article 54 of the EC Statute of the Court of Justice, `if the appeal is well founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.'

21 In the present case, the Court is of the view that it is not in a position to give judgment in the case and that the case must therefore be referred back to the Court of First Instance for it to give judgment on the applicant's claim for annulment of the decision of 3 August 1994.

Operative part

On those grounds,

THE COURT

(Sixth Chamber)

hereby:

1. Sets aside the judgment of the Court of First Instance of 15 October 1997 in Case T-331/94 IPK v Commission in so far as it dismissed the claim of IPK-München GmbH for annulment of the Commission's decision of 3 August 1994 to refuse to pay the balance of financial assistance granted to support a project to create a database of information on ecological tourism in Europe, and ordered the applicant to pay the costs;

2. Refers the case back to the Court of First Instance for it to give judgment on the claim of IPK-München GmbH for annulment of the decision of 3 August 1994;

3. Orders the costs to be reserved.