Case T-56/05: Action brought on 8 February 2005 by Ireland against the Commission of the European Communities
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: Cohesion Fund, EU financing arrangements, European Commission, action for annulment (EU)

C 106/28

EN

Official Journal of the European Union

30.4.2005

The applicant further submits that the Commission violated
Article 97(1) of the Financial Regulation (1) as well as Article
17(1) of Directive 92/50 (2) by using evaluation criteria that
were extremely vague and were not accompanied by clear
quantifiable parameters.

European Communities on 8 February 2005 by Ireland repre-
sented by D.J. -O'Hagan, agent, assisted by P. Gallagher and P.
McGarry, Barristers, and with an address for service in Luxem-
bourg.

that

further

applicant

The
the Commission
considers
committed manifest errors of appreciation in its evaluation of
the applicant's tender. In this respect the applicant contends
that any deficiencies of its bid were due to the Commission's
failure to communicate critical elements required by the appli-
cant in order to prepare its bid. The applicant further contests
each of the statements contained in the report of the Evaluation
Committee.

The applicant also invokes a violation, by the Commission, of
its obligation, under Article 253 EC, to state reasons and a
failure to provide pertinent information requested by the appli-
cant on the grounds for the rejection of its bid. The applicant
also submits that the Commission violated the principle of
good administration and diligence by acting with significant
delay and by not offering adequate answers to the applicant's
requests for information prior to the submission of the bids.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities, OJ L 248, 16/09/2002 p. 1.

(2) Council Directive 92/50/EEC of 18 June 1992 relating to the coor-
dination of procedures for the award of public service contracts, OJ
L 209, 24/07/1992 p. 1.

Action brought on 8 February 2005 by Ireland against the
Commission of the European Communities

(Case T-56/05)

(2005/C 106/61)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

The applicant claims that the Court should:

— annul (in whole or in part) Commission Decision C (2004)
4447 of 29 November 2004 reducing the assistance from
the cohesion fund to project 96/07/61/007 (Dublin Region
Water Supply Scheme — Stage 3), granted by the Commis-
sion Decision C(97) 4090 of 15 December 1997 and redu-
cing the assistance from the cohesion fund to Project No.
95/07/65/007,
(N1 Dunleer — Dundalk Road Stage 2)
granted by the Commission Decision C (96) 2113 of 29
July 1996 in respect of such period or amounts as the
Court should determine;

— order the Commission to bear the costs of these proceed-

ings.

Pleas in law and main arguments

By virtue of Commission Decision C(97) 4090 of 15 December
1997, assistance was granted from the Cohesion Fund to
Project 96/07/61/007 (Dublin Region Water Supply Scheme —
Stage III) in Ireland. By Commission Decision C (96) 2113 of
29 July 1996 assistance was granted from the Cohesion Fund
to Project No. 95/07/65/007, (N1 Dunleer — Dundalk Road
Stage II), also in Ireland. By the contested decision the Commis-
sion reduced the amounts of total assistance granted under the
invoking various irregularities found
two previous decisions,
during the
the projects concerned. The
Commission also decided that a total amount of EUR 797 886
had been unduly received and should be recovered by reimbur-
sement.

examination of

In support of its application to annul the contested decision the
applicant submits first of all that the contested decision is
invalid, having been adopted more than three months after the
date of the oral hearing, in violation of Article 18(3) Regulation
1386/2002 (1) and Article H(2) of Annex II
to Regulation
1164/94 (2). According to the applicant
this constitutes a
breach of an essential procedural requirement as well as an
infringement of the principle of legal certainty.

30.4.2005

EN

Official Journal of the European Union

C 106/29

The applicant also argues that the Commission committed a
further breach of the principle of legal certainty by retrospec-
tively applying new guidelines of eligibility of expenditure in
such a way as to change its interpretation of who constituted
the ‘final beneficiary’ and thus render expenses ineligible as
having been made outside the relevant period. According to
the applicant this also violated its legitimate expectations.

European Communities on 8 February 2005 by Jeremy Henry
Moore Newsum, Mark Anthony Loveday and Robin Shedden
Broadhurst, residing in London (United Kingdom), represented
by M. Kingston QC, D. Park, Barrister and J. Withinshaw, Soli-
citor.

The applicants claim that the Court should:

A further breach of the principle of legal certainty was, in the
applicant's view, the retrospective application of flat rate finan-
cial correction. This concept was, the applicant claims, first
developed and enunciated in guidelines adopted by the
Commission in 2002.

— annul the following parts of the Commission's Decision of
7 December 2004 adopting, pursuant to Council Directive
92/43/EEC, the list of sites of Community importance for
the Atlantic biogeographical region (1) (notified under docu-
ment number C(2004) 4032);

The applicant finally submits that the retrospective application
of the Commission's new approach to the practice of substitu-
tion of eligible for ineligible expenditure constitutes a further
breach of the principle of legal certainty. According to the
applicant it was only in the 2002 Guidelines that the Commis-
sion decided that such substitution was no longer permissible.
However, the applicant argues, this approach could not be
applied to projects dating from 1996 and 1997.

(1) Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying
down detailed rules for the implementation of Council Regulation
(EC) No 1164/94 as regards the management and control systems
for assistance granted from the Cohesion Fund and the procedure
for making financial corrections, OJ L 201 p. 5.

(2) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a

Cohesion Fund, Official Journal L 130 p. 1.

Action brought on 8 February 2005 by Jeremy Henry
Moore Newsum, Mark Anthony Loveday and Robin
Shedden Broadhurst against the Commission of the Euro-
pean Communities

(Case T-57/05)

(2005/C 106/62)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

(i) Article 1 and that item in Annex 1 of the contested
decision provided with the SCI code UK0030163
Halkyn Mountain/Mynydd Helygain;

(ii) or in the alternative, Article 1 and that item in Annex 1
of the contested decision provided with the SCI code
UK0030163 Halkyn Mountain/Mynydd Helygain which
is shown coloured red in the plan annexed to the appli-
cation;

— order the defendant to pay the costs of the applicants.

Pleas in law and main arguments

The applicants are the owners of tracts of land which is partly
used for agriculture and mineral extraction purposes which
now, under the contested decision, has been declared a site of
Community importance (SCI) for the Atlantic biogeographical
region.

The applicants submit that the contested decision infringes
their fundamental rights guaranteed by the general principles of
the Community legal order. That infringement of fundamental
rights is formally unlawful because upon adoption of
the
Commission Decision (and upon implementation of Directive
92/43/EEC (2)) no form of right of participation is bestowed
upon the property owners concerned. The applicants also
allege that the Commission encouraged or acquiesced in a
public participation exercise undertaken by the Member State
in question which was flawed and inadequate in its nature and
duration.

The applicants further submit that no consideration was given
to economic and social requirements, which includes the appli-
cant's private property rights. The contested decision is also
contrary to the provisions of Directive 92/43/EEC itself because
the question of the compensation to be paid remains entirely
open and unresolved.