Opinion of Mr Advocate General Mischo delivered on 11 March 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



Opinion of the Advocate-General

1 The present case concerns aid of ECU 530 000 which the Commission granted to support a project to create a database of information on ecological tourism in Europe, known as `Ecodata', proposed by the appellant, the undertaking IPK-München GmbH (hereinafter `IPK').

2 The appellant submitted the project on 22 April 1992 following a call for proposals published by the Commission in the Official Journal on 26 February 1992. (1) By a letter of 4 August 1992, the Commission informed the appellant that its project had been accepted, and submitted to it a `declaration by the beneficiary of the aid' (hereinafter `the declaration'), which contained the conditions under which the aid was granted. The declaration stipulated in particular that 60% of the amount of the aid would be paid, by the Commission, on receipt of the declaration duly signed by the appellant, and that the balance would be paid once the Commission had received and accepted the reports on the performance of the project. These reports comprised, first, an interim report to be submitted within three months of the project commencing and, secondly, a final report, accompanied by accounts, to be submitted within three months of completion 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.

3 The declaration was signed by the appellant on 23 September 1992 and lodged at the Commission on 29 September 1992. The first instalment of the aid was not, however, paid to the appellant upon receipt by the Commission of the signed declaration. On 18 November 1992, the Commission sent the appellant a new declaration. On the basis of that new declaration, which had the same content as that annexed to the letter of 4 August 1992, the first instalment of the aid was paid in January 1993.

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

5 On 24 November 1992, Mr Tzoanos, Head of Division within DG XXIII, invited the appellant and the undertaking 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 appellant, which the Commission does not, as such, dispute, Mr Tzoanos suggested at that meeting that 01-Pliroforiki should be responsible for the majority of the work and that the majority of funds be allocated to that undertaking. The appellant 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 known as `Ecotrans'. That participation was further discussed, in particular, at a meeting at the premises of the Commission on 19 February 1993 during which the Commission continued to press for the inclusion of Studienkreis für Tourismus in the project.

6 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 which had resulted, in August 1992, in the grant of aid to the Ecodata project.

7 Having failed to reach an agreement with Studienkreis für Tourismus, in March 1993 the appellant and the undertakings whose participation was envisaged in the initial proposal, namely Innovence, Tourconsult and 01-Pliroforiki, negotiated an agreement on the structure of the project and, in particular, the distribution of tasks. This agreement was formally concluded on 29 March 1993.

8 The appellant submitted an initial report in April 1993, 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 carried out. That presentation took place on 15 November 1993.

9 By letter of 30 November 1993 the Commission informed the appellant that it considered that the final report showed that the work completed by 31 October 1993 did not satisfactorily correspond with what was envisaged in the appellant's proposal of 22 April 1992. The Commission therefore refused to pay the outstanding 40% of the ECU 530 000 which it had proposed for the project.

10 Since it considered that it had suffered serious loss as a result of the Commission's decision not to pay the second instalment of the aid which had been granted to it by the letter of 4 August 1992, the appellant brought an action seeking to have the aforementioned decision set aside.

11 The appellant raised two pleas in law before the Court of First Instance. The first alleged infringement of the principles of legal certainty and the protection of legitimate expectations. The second plea alleged that the decision was based on inadequate reasoning.

12 By its judgment of 15 October 1997, (2) the Court of First Instance dismissed that action.

13 By application lodged at the Registry of the Court of Justice on 22 December 1997 the appellant has brought an appeal against the aforementioned judgment of the Court of First Instance.

14 The appellant claims that the Court should:

(1) set aside the Court of First Instance's judgment of 15 October 1997 in Case T-331/94 and annul the Commission's decision of 3 August 1994 to refuse to pay the second instalment of the aid granted to the appellant by its letter of 4 August 1992;

(2) in the alternative, set aside the aforementioned judgment of the Court of First Instance and refer the case back to that court;

(3) order the Commission to pay the costs.

15 The Commission claims that the Court should:

(1) dismiss the appeal;

(2) order the appellant to pay the costs of the proceedings.

The appeal

16 In support of its appeal the appellant relies on six pleas in law, of which I shall examine initially the second, third and fourth pleas.

The second plea

17 The second plea alleges `infringement of the obligation to state reasons, and failure to take into consideration Mr Tzoanos' remarks of 19 February 1993'.

18 The appellant contends that the Court of First Instance erred in failing to take into consideration remarks by Mr Tzoanos made in the course of a meeting attended by representatives of the Commission, the four partners in the project and Studienkreis für Tourismus, to the effect that the Commission agreed that the project should cover only four Member States instead of twelve. It considers these remarks to be evidence that the project had been modified. The remark in question, which is contained in the minutes of the 19 February 1993 meeting drawn up by the Commission, reads as follows:

`The proposal did not make clear where the information for the network was to be derived from, but the Commission would prefer that this information is drawn from all member states; the latter, however, was not a formal obligation.' In those circumstances, the appellant holds the view that the Court of First Instance should have examined whether there had been infringement of the principle of the protection of legitimate expectations or of the principle of estoppel. Thus, the appellant contends, since the Commission agreed to modification of the conditions for grant of the aid, those principles prevent it from now criticising the appellant for failing to comply with the initial conditions under which the aid was granted.

19 The Commission considers, first, that this plea is in fact raised against the finding of fact by the Court of First Instance that the project had been only partially completed, and that it therefore, must be rejected as inadmissible.

20 I do not share that view. The plea under examination concerns in fact the issue whether the disputed remarks were capable of modifying the conditions under which the aid was granted. The question whether or not the conditions in question were satisfied, and in particular whether the project was completed, given those conditions, can only be addressed thereafter. The substance of the conditions to be satisfied must first be determined before it can be decided whether or not they were fulfilled.

21 It flows from this that, in alleging that the Court of First Instance failed to give adequate reasons as regards whether the conditions under which the aid was granted had been modified, the appellant is advancing a plea concerning the consequences in law of the disputed remarks, and not a plea concerning the finding in fact by the Court of First Instance that the initial conditions under which the aid was granted had not been met.

22 The appellant's plea could, admittedly, lead to a conclusion that the conditions under which the aid was granted had been modified and that, as a result, the Court of First Instance's finding of fact that the initial conditions had not been satisfied was irrelevant. This, quite clearly, does not amount to questioning the content of the finding itself. The Commission's assertion that the claim is inadmissible therefore does not stand up in this instance.

23 The latter contends, moreover, that the remarks in question carry no legal weight and merely suggest that the appellant proposed partial performance which did not at all entitle it to the full amount of the financial assistance envisaged.

24 Such an argument goes to the substantive issue, which is that of determining the legal effect, if any, of the remarks in question.

25 It must be emphasised, however, that the plea under examination here is not a response touching on the merits of the case, but concerns the statement of reasons by the Court of First Instance.

26 In this regard, it must be observed that the Court of First Instance did not give a detailed reply to the argument set forth by the appellant. The Court of First Instance referred to the matter of whether or not the geographical extent of the database was adequate only in the following terms:

`As regards the appellant's observation of the conditions under which the aid was granted, as defined above, it should be noted that as at 31 October 1993, the work intended to extend the system to the regions and Member States other than those covered by the pilot phase of the project had not been carried out.' (3)

27 The appellant can, indeed, reasonably deduce from this, as the only possible implication, that the Court of First Instance rejected its argument that the conditions under which the grant was made had been modified, since the Court confined itself to examining whether the initial conditions were satisfied.

28 The words which the Court of First Instance used, however, do not afford the appellant, nor, furthermore, the Court of Justice, called upon to exercise its review function, the slightest possibility of identifying the grounds on which the Court of First Instance rejected the appellant's argument on this point.

29 It is true that the appellant explicitly set forth its argument based on Mr Tzoanos' remarks only at the reply stage, in response to the Commission's defence.

30 This consideration is, however, of no relevance whatsoever in determining whether the Court of First Instance complied with its obligation to give reasons for rejecting the plea in question. Nor, indeed, did the Court of First Instance declare it to be inadmissible.

31 Given all the foregoing, it must be concluded that the Court of First Instance did fail to give reasons sufficient in law for rejecting the appellant's argument seeking to show infringement of the principle of the protection of legitimate expectations and of the principle of estoppel, consisting in the fact that the Commission is now allegedly requiring compliance with conditions modification of which it had previously accepted.

32 I therefore consider the appellant's second plea to be well founded.

The third plea

33 By its third plea, the appellant contends that the Court of First Instance based itself on inaccurate facts.

34 The appellant points out that the Court of First Instance, at paragraph 48 of its judgment, stated that `[t]he appellant waited until March 1993 before starting discussions with its partners concerning the distribution of tasks with a view to completing the project'. That this statement is wrong is, according to the appellant, discernible even from evidence before the Court.

35 The Commission considers this plea to be inadmissible since, in its view, it amounts to questioning a finding of fact by the Court of First Instance which is, moreover, evident and beyond all dispute.

36 According to settled case-law, a finding of fact by the Court of First Instance cannot, prima facie, be reopened on appeal. There is, however, an exception to this principle where the finding is vitiated by a manifest error of assessment. This occurs, in particular, where a finding of fact by the Court of First Instance is contradicted by the case documents. (4)

37 So, it can be seen from those documents that, in November 1992 and February 1993, the appellant attended meetings held first and foremost to decide fundamental aspects concerning the distribution of tasks between the various participants in the project.

38 The first meeting thus addressed the distribution of tasks between the appellant and the Greek undertaking 01-Pliroforiki, and was followed by at least one communication in writing by the appellant in January, regarding the distribution of tasks.

39 The purpose of the February meeting was essentially to define the terms of participation of an undertaking by the name of `Ecotrans', which did not feature in the appellant's proposal, but which the Commission wished to have participate in the project. The minutes of the meeting stated, furthermore, that the appellant was granted until 13 March to settle the matter of the sharing of tasks.

40 One could argue that, since it related to participation by a third party undertaking, this second meeting was not part of any negotiations `with its [the appellant's] partners', to use the Court of First Instance's own words.

41 It seems to me incontrovertible, however, that, since negotiations on participation by a third party undertaking concerned the distribution of tasks relating to a specific project and, consequently, of funds which were themselves fixed, they necessarily fall within the ambit of distribution between the original partners.

42 The documents submitted to this Court therefore clearly show that there were negotiations on the distribution of tasks in the context of the project which involved the appellant and which took place prior to March 1993, the date taken into account by the Court of First Instance.

43 The fact that these meetings were convened, it would appear, at the initiative of the Commission and not of the appellant, does not at all alter the fact that they did take place and that the appellant attended them, and therefore took part in negotiations on the distribution of tasks.

44 Similarly, the observation put forward by the Commission that IPK may not have demonstrated all the initiative and efficiency that circumstances seemed to require, does not at all alter the fact that, well before March 1993, it had already taken part in negotiations on the distribution of tasks.

45 The Court of First Instance's finding that the appellant waited until March 1993 before starting those discussions is, therefore, contradicted by the documents before the Court and vitiated by manifest error.

46 The third plea must therefore also be upheld.

The fourth plea

47 IPK considers that the Court of First Instance erred in law in taking 31 October 1993 as the deadline for delivery of the final report.

48 The appellant sets forth a series of arguments on this point.

49 It relies, first, on the contractual nature of its relationship with the Commission. In its view, the latter set 15 October 1992 as the starting date for the project, which it was proposed would last fifteen months. The Commission was not therefore entitled unilaterally to set 31 October 1993 as the date for completion. This would be an infringement of the principles of the law of contract.

50 The Commission maintains, on the other hand, that the appellant is merely repeating a manifestly erroneous assertion which had already been rejected at the time of the proceedings before the Court of First Instance.

51 The Commission disputes, in particular, the interpretation which the appellant seeks to give to the Commission's letter of 23 October 1992, in which it informed the appellant that `[f]or the purposes of this exercise all projects are deemed to start by 15 October'.

52 I share the Commission's conclusion that, contrary to what the appellant asserts, one cannot deduce from the content of this letter that the Commission had decided to postpone the starting date of the project. That letter does not in fact refer to the 15 October date unconditionally, qualifying it as it does with the phrase `for the purposes of this exercise', namely, for `monitoring' purposes.

53 Furthermore, and most significantly, the same letter states that the date on which the Commission expected the final report was indeed still 31 October 1993.

54 The appellant cannot therefore rely on that document to infer an intention by the Commission to modify the deadline, whatever doubts the reference to 15 October may, admittedly, have aroused. One must take the view, in consequence, that the Commission could not have unilaterally modified the terms of the `contract', and it is not even necessary to examine whether the relationship between the Commission and the appellant was in fact contractual in nature.

55 Other arguments which the appellant adduces under this plea are, however, more persuasive.

56 It explains that the delay in launching the project was due, on the one hand, to the late payment of the aid, and, on the other, to interference by the Commission. The latter therefore, in the appellant's view, infringed the principle of good faith and committed an abuse of rights by requiring the appellant to comply with a deadline which its own conduct rendered impossible to meet.

57 According to the appellant, the Court of First Instance misdirected itself as to the significance of these principles by finding that it was the appellant which had to prove that the conduct of Commission officials had prevented it from engaging in proper cooperation with its partners before March 1993.

58 It is necessary to determine, therefore, whether the Court of First Instance was right to adjudge, at paragraph 48 of its judgment, that:

`Even though the appellant 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.'

59 The appellant states that, by requiring it in this way to prove a negative, proof which in practice is impossible to furnish, the Court of First Instance rendered meaningless the limits, which the prohibition on the abuse of rights imposes on the Commission.

60 It is true that, by obliging the appellant to prove the impossibility of any cooperation with its partners, the Court of First Instance required it to prove a negative.

61 What seems to me more conclusive, however, is the fact that the Court of First Instance itself found that the appellant had provided evidence of interference by Commission officials in the management of the project. What is more, it even went so far as to describe as `disturbing' the manner in which this interference occurred.

62 I consider, therefore, that it was incumbent on the Court of First Instance to draw from this finding what seem to me to be the inevitable conclusions as regards the burden of proof.

63 Thus, the appellant, in my view, by providing the evidence to which the Court of First Instance referred, furnished prima facie evidence that actions by the Commission, the occurrence of which was mentioned by that court, had a detrimental effect on the running of the project.

64 According to generally accepted principles on the subject, this prima facie evidence, far from being of no consequence, as the Court of First Instance appeared to believe, has the effect, on the contrary, of reversing the burden of proof.

65 Once the appellant produced evidence making it possible to think that the alleged conduct of members of the Commission staff may have impacted on the smooth running of the project, it fell to the Commission, then, to bear the burden of proving that, despite the conduct in question, the appellant remained fully able to manage the project in a satisfactory manner.

66 This is indeed true since, apart from the evidence indicated by the Court of First Instance, the appellant also relies on the fact, which is not disputed, that, for a project which was supposed to last 15 months and end in October 1993, the Commission did not pay the first instalment of the aid at issue until January 1993.

67 I therefore consider that the Court of First Instance erred in law in requiring the appellant to prove that the conduct of Commission officials had prevented it from cooperating with its partners.

68 However, the conclusion reached by the Court of First Instance as regards the burden of proof led it to find, at paragraph 48 of the judgment under appeal, that the appellant could not level blame against the Commission for causing the delay in the completion of the project.

69 Since the Court of First Instance relied on this finding, even if it did not state precisely why it considered it to be founded, it must be concluded that the position of the appellant was altered and that the plea alleging infringement of the law relating to the burden of proof must be upheld.

70 It is therefore unnecessary to examine the appellant's arguments to the effect that the Court of First Instance infringed the rules on evidence and failed in its duty to investigate the matter by rejecting the appellant's request for production of documents by DG XXIII, whilst at the same time finding against it in relation to the burden of proof.

71 Since these three pleas must, in my view, be upheld, there is no need to examine the others.

72 In view of the foregoing, I cannot but propose that the Court should set aside the judgment of the Court of First Instance. Given that the evidence before the Court sets out the case in full, the Court of Justice can, in my view, give judgment on the matter.

Substance

73 The appellant relies on the following arguments to seek annulment of the contested decision.

74 It considers that the Commission contracted an undertaking to pay to it the funds envisaged in the context of the decision to grant the aid and that none of the arguments advanced by the Commission enable it to avoid this obligation.

75 In particular, the appellant points out, first, that the Commission's powers of control were confined merely to monitoring utilisation of the funds, and that the Commission's assertions as regards this utilisation, are, in its view, easily refuted.

76 Given the imperative restrictions on the Commission's powers of control under the rules on aid, the Commission was not, to the appellant's understanding, entitled to refuse to make the payment on the ground of material shortcomings affecting the project.

77 What is more, according to the appellant, even on the assumption that the Commission could, in theory, have relied on such arguments, they are, in the present case, unfounded.

78 Lastly, the appellant contends that, even if the work ultimately carried out had to be found to differ from the initial proposal, the obligation to pay the balance would remain none the less.

79 In support of its argument the appellant asserts, in particular, that the delay in implementing the project was caused by the Commission's conduct which, it claims, `greatly hindered and disrupted its work'.

80 The Commission is therefore not entitled, the appellant argues, to rely on the 31 October 1993 deadline, which its own actions rendered impossible to meet, and it was legitimate for the appellant to believe that the performance of the project and therefore the deadline had been postponed.

81 The principal justification which the Commission gives for its decision lies in the fact that the project was incomplete as at 31 October 1993, and, according to the Commission, that is the only relevant criterion to determine whether or not the balance of the aid is payable since, by signing the aid declaration, the appellant undertook to complete the project by that date, on pain of renouncing the right to that payment.

82 It should be observed that the decision to grant the aid was notified to the appellant by letter of 4 August 1992. The latter was invited to sign and return the declaration by the beneficiary annexed to the letter, to enable the payment to take place.

83 The appellant signed and returned the declaration on 23 September 1992 - not, moreover, indicative of any great promptness on the part of an undertaking in receipt of Community aid. As apparent from paragraph 19 of the Commission's rejoinder submitted to the Court of First Instance, the letter was registered in the incoming correspondence section of DG XXIII on 29 September 1992 and allocated to Mr Tzoanas. Nothing then happened for two months. The Commission explains in detail the reasons for this inaction, which it attributes exclusively to the deliberate behaviour of the official concerned. In November, the appellant contacted the Commission to enquire about payment of the first instalment. As from that moment, as the Commission continues to explain, the payment procedure was set in motion and the payment was made in January 1993, on an unspecified date.

84 Three months had therefore already elapsed since the date on which IPK returned its duly signed acceptance declaration, and the undertaking had not received the first instalment, which was, however, under the provisions of that declaration, to be paid as soon as the Commission received the signed declaration.

85 It should be observed, furthermore, that this declaration, on a literal interpretation of which the Commission's argument rests, made reference both to the project proposal submitted by the appellant, which explicitly proposed that the project would take fifteen months, and to the 31 October 1993 deadline for its completion.

86 It is true that the call for proposals stipulated that the projects selected would last a year. (5) The Commission did, none the less, accept the appellant's proposal, including the express reference to the fifteen-month project period.

87 The declaration made perfect sense in August 1992, when it was sent to the appellant for acceptance. It no longer made sense, on the other hand, when the Commission eventually made the first payment due under that declaration. That payment, as has been seen, was in fact made only in January.

88 As has already been seen in relation to the fourth plea of the appeal, the Commission and the appellant dispute, in particular, the interpretation to be given to a letter sent by the Commission on 23 October to all undertakings in receipt of aid under the programme in question. The Commission stated in that letter that `[f]or the purposes of this exercise, all projects are deemed to start by 15 October', and that it therefore expected the first interim report by 15 January 1993. The letter pointed out that final reports had to be submitted on 31 October 1993.

89 In the specific context of the appellant's project, the meaning of this document is unclear. Given the fact that, as has been seen, the Commission agreed that the project would take fifteen months, should one understand therefore that this letter postponed the project starting date to 15 October 1992, in which case the completion date should logically have been put back to 15 January 1994. Or should one lay emphasis on the last sentence and, accordingly, understand that the deadline remained 31 October 1993, in which case the project should have been deemed to have started on 1 August 1992, that is, five months before payment of the aid and even before the appellant had returned the declaration?

90 In any event, in the circumstances described above, the Commission could not reasonably consider that the time-limit initially envisaged remained totally unaltered. It could not, thus, hold the undertaking in receipt of the aid to a literal reading of the condition laid down at paragraph 5 of the aforementioned declaration (deadline of 31 October 1993) whilst being able, for its part, to avoid with impunity enforcement of the payment conditions laid down at paragraph 2 of the same document (payment on receipt of the signed and dated declaration).

91 This consideration stands up, moreover, whether or not one classifies the relationship between the Commission and the beneficiary of the aid as contractual.

92 It is true, as the Commission points out, that an undertaking granted aid is perfectly able to commence work as soon as the grant decision is made, whilst awaiting the payment.

93 In the present case, however, so much time elapsed that it ceased to be possible to assume that the beneficiary undertaking was in a position to take the work forward regardless, using its own resources.

94 This is all the more so given that, in the period subsequent to the appellant sending the declaration, there were numerous interventions by staff of the Commission, as the latter admits. These interventions sought, as applicable, to influence the distribution of tasks, and therefore of funds, between the undertakings which were partners in the project, or, even, to promote inclusion of an additional undertaking, not initially envisaged in the proposal submitted by the appellant. It is not disputed that this was still happening at the meeting of 19 February 1993, which has already been mentioned (paragraph 5 above).

95 Negotiations with a view to involving Ecotrans (Studienkreis für Tourismus eV) in the project ran on, without success, until March 1993, and it was only on 29 March that an agreement on the structure of the project and, in particular, the distribution of tasks, was finally concluded between the original participants.

96 In those circumstances, the Commission was not entitled to assume that the undertaking would quite calmly use its own resources in carrying out the project, nor that it would be in a position to progress the work at the pace initially envisaged.

97 Before the Court of First Instance, the Commission asserted that, even disregarding the issue of including Ecotrans, IPK failed, from the outset, to demonstrate the required degree of diligence.

98 As to the merits of this argument, it is, however, discernible from the assessment made by the Commission director responsible, in an internal note of 25 February 1993 annexed to the appellant's reply, that he was aware of the fact that not all responsibility for the delay in the performance of the project could be imputed to the appellant, and that the Commission faced a veritable dilemma. After pointing out that the first payment had been late, the director stated the following:

`In addition it is clear that little or no work has been done on the project. Here IPK will always argue that this was due to our imposing the additional requirement of their consulting and involving Ecotrans in the project even though they did not form part of the original proposal or our subsidy-contract. There may even by some justification in this point although I am not that sure that IPK would have worked more quickly in any event.

The outcome of this is that we have had a delay of some 5 months out of approximately 14. In the circumstances I think it is most unlikely that the deadline of 31st of October for completion of the contract can be achieved.

I would like if possible to be able to give some indication before 13 March that we can extend the date. Apparently, however, if we do so we will loose the balance of the subsidy (approximately 240. 000 ECU) as we will not pay it in this year. This may however be preferable to forcing the partners to attempt to meet the deadlines which seem totally unrealistic.

I would be grateful if you and RS could consider whether there is some way out of this dilemma. All that occurs to me is that we can perhaps accept the loss of the 240. 000 and pay that amount eventually out of next year's budget - but this will of course draw the problem that was created to the attention of the Management Committee.' (6)

The Commission official was therefore quite evidently of the view that, in terms of fairness at least, there were grounds for extending the time-limit, and that the only obstacle to an extension was the annual nature of the credits in question. He thought, however, that there might be a technical means of circumventing the problem.

99 My view is that the Commission should indeed have sought a solution of this kind.

100 It is, on the other hand, apparent from the Commission's letter of 30 November 1993, which sets out the grounds for the decision finally issued by letter of 3 August 1994, that the Commission bases its entire reasoning for refusing to pay the balance on the state of progress of the project as at 31 October 1993.

101 As regards the other considerations referred to in that letter, on which the parties expound at length, these concern the application of funds already paid, in the context of a possible decision by the Commission to require their reimbursement.

102 Since the action seeks only annulment of the decision to refuse to pay the balance, it is not for me to examine the arguments raised in the context of a possible decision requiring reimbursement.

Conclusion

103 It thus follows from the foregoing that, by considering that the project should be completed by 31 October 1993, whereas payment of the aid did not take place as soon as the acceptance declaration was received, and by continuing until as late as February 1993 to press for the list of participating enterprises to be changed, the Commission departed from its own decision to grant financial assistance. By doing so, it also infringed the principle patere legem quam ipse fecisti and the principle of good faith. (7) Given that the Commission's defence has in my view been unsuccessful, I propose, also, that it be ordered to pay costs.

(1) - OJ 1992 C 51, p. 15.

(2) - Case T-331/94 IPK v Commission [1997] ECR II-1665.

(3) - Paragraph 41 of the contested judgment.

(4) - See, for example, the judgment of the Court of Justice in Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981.

(5) - OJ 1992 C 51, p. 15.

(6) - (French translation included here in the original text).

(7) - Judgment in Joined Cases 43/59, 45/59 and 48/59 Von Lachmüller, Bernard Peuvrier and Roger Ehrhardt v Commission of the European Communities [1960] ECR 463, and, especially, p. 474 et seq.