Case C-384/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid
Date: 2006-12-16
Institutions: Court of Justice
Subjects: European Investment Bank, Structural Funds, application of EU law, balance of payments assistance, competence of the Member States, coordination of financing, interpretation of the law, redemption

C 310/2

EN

Official Journal of the European Union

16.12.2006

Parties to the main proceedings

Applicant: Vereniging Nationaal Overlegorgaan Sociale Werk-
voorziening

Defendant: Minister van Sociale Zaken en Werkgelegenheid

Reference for a preliminary ruling from the Raad van
State (Netherlands)
lodged on 18 September 2006 —
Gemeente Rotterdam v Minister van Sociale Zaken en
Werkgelegenheid

(Case C-384/06)

(2006/C 310/04)

Language of the case: Dutch

Question(s) referred

1. a) Can a Member State or an administrative authority of
is to say

that State derive a power directly — that
without a basis in national law — from a regulation?

Referring court

b) If so, does Article 23(1) of Regulation No 4253/88 (1) of
19 December 1988 laying down provisions for imple-
menting Regulation 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 the other existing financial instru-
ments, as amended by Regulation No 2082/93 (‘the
the power, having
coordination regulation’), confer
regard to the fixing of the subsidy, to recover amounts
of subsidy unduly paid, on the basis that Article 23 of
the coordination regulation requires the Member States
to do so where there is irregularity or negligence within
the meaning of that article?

2. If not, does Article 10 EC, read in conjunction with Article
249 thereof, mean that a national provision such as Article
4.57 of the Algemene Wet Bestuursrecht (General Law on
Administrative Law) — under which amounts of subsidy or
advances unduly paid may be recovered — must be inter-
preted in conformity with the regulation?

3. If so, is that interpretation limited by general legal principles
which form part of Community law, in particular the princi-
ples of legal certainty and the protection of legitimate expec-
tations?

4. a) If the answer to the third question is in the affirmative,
the question arises in relation to that limitation whether
national principles of legal certainty and the protection
of legitimate expectations can be more far-reaching than
general principles of Community law, especially the prin-
ciples of legal certainty and the protection of legitimate
interests which are to be complied with when applying
the coordination regulation.

b) In applying the Community legal principles of

legal
certainty and legitimate expectations, is it of significance
that
the Member State granting the subsidy is itself
responsible for the fact that the subsidy recipient has
failed to fulfil the subsidy obligations which flow from
the relevant part of Community law?

(1) OJ L 374, p. 1.

Raad van State (Netherlands)

Parties to the main proceedings

Applicant: Gemeente Rotterdam

Defendant: Minister van Sociale Zaken en Werkgelegenheid

Question(s) referred

1. a) Can the Member State or one of its authorities derive a
competence directly from a regulation — without a basis
in national law?

the activities of

b) If so, does Article 23(1) of Council Regulation (EEC) No
4253/88 (1) of 19 December 1988, laying down provi-
sions for implementing Regulation (EEC) No 2052/88 as
regards coordination of
the different
Structural Funds between themselves and with the opera-
tions of the European Investment Bank and the other
existing financial
instruments, as amended by Council
Regulation No 2082/93 of 20 July 1993 ('the coordina-
tion regulation') confer authority to withdraw an order
on the granting of a subsidy and to claim back the sum
paid, on the basis that Article 23 of the coordination
regulation requires the Member State to do that in so far
as irregularities or negligence within the meaning of the
said Article 23 are involved?

2. If not, is a national legal provision like Article 4.49.1 of the
Algemene Wet Bestuursrecht (General Law on Administra-
tive Law), on the basis of which the authority may withdraw
the determination of the subsidy or amend it to the detri-
ment of the beneficiary if (a) there are facts or circumstances
of which it could not reasonably have been aware at the
time the subsidy was determined and which would have
resulted in a lower subsidy being determined than that in
the order on the granting of the subsidy, (b) the determin-
ation of the subsidy was made in error and the beneficiary
knew this or should have known it, or
the
the beneficiary has not
determination of
fulfilled the obligations attached thereto, to be interpreted,
pursuant to Article 10 EC in conjunction with Article 249
EC, in a manner that conforms to the regulation?

the subsidy,

(c) after

16.12.2006

EN

Official Journal of the European Union

C 310/3

3. If so, is that interpretation limited by general legal principles
which form part of Community law, in particular the princi-
ples of legal certainty and the protection of legitimate expec-
tations?

4. If the answer to the third question is in the affirmative, the
question arises in relation to that limitation whether the
national principles of legal certainty and the protection of
legitimate expectations which underlie Article 4.49.1 of the
Algemene Wet Bestuursrecht (General Law on Administra-
tive Law) can be more far-reaching than general principles
of Community law, especially the principles of
legal
legitimate expectations
certainty and the protection of
which are to be complied with when applying the coordina-
tion regulation.

5. Is it of any relevance, having regard to Article 10 EC when
applying the Community law principles of legal certainty
and the protection of legitimate expectations, that the bene-
ficiary is a legal person under public law?

(1) OJ L 374, p. 1.

Structural Funds between themselves and with the opera-
tions of the European Investment Bank and the other
existing financial
instruments, as amended by Council
Regulation No 2082/93 of 20 July 1993 (‘the coordina-
tion regulation’) confer authority to withdraw an order
on the granting of a subsidy and to claim back the sum
paid, on the basis that Article 23 of the coordination
regulation requires the Member State to do that in so far
as irregularities or negligence within the meaning of the
said Article 23 are involved?

2. If not, is a national legal provision like Article 4.49.1 of the
Algemene Wet Bestuursrecht (General Law on Administra-
tive Law), on the basis of which the authority may withdraw
the determination of the subsidy or amend it to the detri-
ment of the beneficiary if (a) there are facts or circumstances
of which it could not reasonably have been aware at the
time the subsidy was determined and which would have
resulted in a lower subsidy being determined than that in
the order on the granting of the subsidy, (b) the determin-
ation of the subsidy was made in error and the beneficiary
knew this or should have known it, or
the
determination of
the beneficiary has not
fulfilled the obligations attached thereto, to be interpreted,
pursuant to Article 10 EC in conjunction with Article 249
EC, in a manner that conforms to the regulation?

the subsidy,

(c) after

Reference for a preliminary ruling from the Raad van
lodged on 18 September 2006 —
State (Netherlands)
Sociaal Economische Samenwerking West-Brabant v Alge-
meene Directie voor de Arbeidsvoorziening

3. If so, is that interpretation limited by general legal principles
which form part of Community law, in particular the princi-
ples of legal certainty and the protection of legitimate expec-
tations?

(Case C-385/06)

(2006/C 310/05)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

4. If the answer to the third question is in the affirmative, the
question arises in relation to that limitation whether the
national principles of legal certainty and the protection of
legitimate expectations which underlie Article 4.49.1 of the
Algemene Wet Bestuursrecht (General Law on Administra-
tive Law) can be more far-reaching than general principles
of Community law, especially the principles of
legal
certainty and the protection of
legitimate expectations
which are to be complied with when applying the coordina-
tion regulation.

Parties to the main proceedings

Applicant: Sociaal Economische Samenwerking West-Brabant

Defendant: Algemeene Directie voor de Arbeidsvoorziening

5. Is it of any relevance, having regard to Article 10 EC when
applying the Community law principles of legal certainty
and the protection of legitimate expectations, that the bene-
ficiary is a legal person under public law?

Question(s) referred

1. a) Can the Member State or one of its authorities derive a
competence directly from a regulation — without a basis
in national law?

b) If so, does Article 23(1) of Council Regulation (EEC) No
4253/88 (1) of 19 December 1988, laying down provi-
sions for implementing Regulation (EEC) No 2052/88 as
the different
regards coordination of

the activities of

6. Does it follow from Article 23(1) of the coordination regu-
lation that the determination of the subsidy is to be with-
drawn and the sums paid are to be recovered if it is estab-
lished that the Member State has already repaid an unduly
granted subsidy to the European Social Fund, or has in any
event made a ruling to that effect, if, either on the basis of
Article 23(1) of the coordination regulation or on the basis
of Article 4.49.1 of the Alegemene Wet Bestuursrecht inter-
preted in accordance with the regulation, the determination
of the subsidy is to be withdrawn and the sums paid are to
be recovered?