CELEX: 62017CO0402
Language: en
Date: 2018-05-17 00:00:00
Title: Order of the Court (Tenth Chamber) of 17 May 2018.#JYSK sp. z o.o. v European Commission.#Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Refusal to grant a financial contribution from the European Regional Development Fund (ERDF) to the major project ‘European Shared Services Centre’ — Action for annulment — Undertaking responsible for project implementation — Conditions of admissibility — Lack of direct concern.#Case C-402/17 P.

ORDER OF THE COURT (Tenth Chamber)
17 May 2018 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Refusal to grant a financial contribution from the European Regional Development Fund (ERDF) to the major project ‘European Shared Services Centre’ — Action for annulment — Undertaking responsible for project implementation — Conditions of admissibility — Lack of direct concern)
In Case C‑402/17 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 July 2017,

JYSK sp. z o.o., established in Radomsko (Poland), represented by H. Sønderby Christensen, advokat,
appellant,
the other party to the proceedings being:

EuropeanCommission, represented by R. Lyal and B.-R. Killmann, acting as Agents,
defendant at first instance,
THE COURT (Tenth Chamber),
composed of E. Levits (Rapporteur), President of the Chamber, A. Borg Barthet and M. Berger, Judges,
Advocate General: M. Bobek,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following

Order

1        By its appeal, JYSK sp. z o.o. seeks to have set aside the judgment of the General Court of the European Union of 4 May 2017, JYSK v Commission (T‑403/15, not published, ‘the judgment under appeal’, EU:T:2017:300), by which the General Court dismissed as inadmissible its action for annulment of Commission Decision C(2015) 3228 of 11 May 2015 refusing to make a financial contribution from the European Regional Development Fund (ERDF) to the major project ‘European Shared Services Centre — Intelligent Logistics Systems’ forming part of the operational programme ‘Innovative Economy’ drawn up by the Republic of Poland for the 2007-2013 programming period (‘the decision at issue’).
 Background to the dispute

2        The background to the dispute is summarised in paragraphs 1 to 8 of the judgment under appeal:
‘1      On 1 October 2007, by Decision C(2007) 4562, the European Commission adopted the operational programme “Innovative Economy” submitted by the Republic of Poland pursuant to Article 32 of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25). 
2      It is apparent from the file that the applicant, [JYSK], a Polish company governed by private law, submitted to the Polish authorities, on 17 July 2008, a grant application in respect of the project “European Shared Services Centre — Intelligent Logistics Systems” (“the project”) and that, on 18 February 2009, the Polish authorities and the applicant signed a contract relating to the award of a grant for the implementation of that project within the framework of the operational programme “Innovative Economy” (“the contract”). 
3      The grant was intended to finance part of the eligible expenditure of the project; 85% thereof was financed by the Republic of Poland in the form of a contribution from the European Regional Development Fund (ERDF) and 15% by way of State funds. In addition, it is apparent from the contract, as amended on 19 April 2010, that, if the Commission refused to contribute to the funding pursuant to Article 41(3) of Regulation No 1083/2006, the contract would expire on the date of notification of the Commission’s decision to the beneficiary (see Article 5(12) of the contract) and that, in that case, the beneficiary would undertake to repay all or part of the funds already paid by the Polish authorities (see Article 5(14) of the contract). 
4      On 30 April 2010, the Republic of Poland submitted to the Commission, under Articles 39 to 41 of Regulation No 1083/2006, a request for confirmation of the financial contribution from the ERDF in respect of the project. 
5      Following an exchange of letters between the Republic of Poland and the Commission, the Commission having expressed doubts as to whether it would be able to confirm that a contribution would be made from the ERDF to the project, the Republic of Poland withdrew, by letter of 15 July 2011, the request for confirmation of the ERDF’s financial contribution. By letter of 3 August 2011, the Commission took formal notice of the withdrawal of the request and again informed the Republic of Poland of the problems relating to the project. The project was completed in 2011 after the withdrawal of the request for confirmation. 
6      On 1 August 2013, the Republic of Poland submitted to the Commission a new request for confirmation of the ERDF’s financial contribution to the project. The application for a financial contribution submitted by the Republic of Poland in accordance with Annex XXII to Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Regulation No 1083/2006 and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (OJ 2006 L 371, p. 1) designates the applicant as the “organisation responsible for project implementation (beneficiary)”.
7      By letter of 24 June 2014, the Commission expressed doubts regarding the new project proposal. By letter of 28 August 2014, the Republic of Poland replied to the Commission’s observations. 
8      On 11 May 2015, on the basis of Article 41(3) of Regulation No 1083/2006, the Commission adopted [the decision at issue], by which it refused to grant a financial contribution to the project (Article 1). The decision [at issue] states that any expenditure relating to the project included in a statement of expenditure predating that decision must be rectified in the subsequent statement of expenditure (Article 2). The decision [at issue] is addressed to the Republic of Poland (Article 3).’
 The proceedings before the General Court and the judgment under appeal

3        By application lodged at the Registry of the General Court on 22 July 2015, the appellant brought an action for annulment of the decision at issue.

4        By separate document, lodged at the Court Registry on 15 October 2015, the Commission raised an objection of inadmissibility on the ground that the appellant did not have locus standi, under the fourth paragraph of Article 263 TFEU, to bring an action for annulment of the decision at issue.

5        Having found that the appellant was not the addressee of the decision at issue and that that decision does not constitute a regulatory act not entailing implementing measures, the General Court examined whether the appellant was directly and individually concerned by the decision.

6        As to whether the appellant was directly concerned, the General Court set out, in reference to settled case-law of the Court of Justice, the two criteria necessary for the satisfaction of that condition, namely, first, that the contested measure must directly affect the legal situation of the individual and, second, that it must leave no discretion to its addressees, who are entrusted with the task of implementing it.

7        As regards the first of those criteria, having expounded the regulatory framework governing, in particular, the selection of projects financed by the ERDF, the General Court found, in paragraph 29 of the judgment under appeal, that it is to the Member State concerned that the Commission grants a financial contribution from the ERDF for a major project or addresses its refusal to grant such a contribution, that Member State being the holder of the right, if granted, to the EU financial assistance in question.

8        The General Court reached the conclusion, in paragraphs 35 and 36 of the judgment under appeal, that it is the Republic of Poland which had been denied a financial contribution from the ERDF pursuant to the decision at issue and therefore that that decision did not have any effect on the applicant’s legal situation.

9        As regards the second criterion, the General Court found, in paragraph 42 of the judgment under appeal, that the decision at issue did not prevent the Republic of Poland from contributing to the appellant’s project financially and did not therefore require it to recover any sums which it might have paid for its implementation. The General Court explained, in paragraph 47 of the judgment under appeal, that although in the present case the appellant is bound to reimburse the financial contributions made by that Member State, it must do so pursuant to the contract and not the decision at issue or the applicable EU legislation.

10      Having rejected the appellant’s arguments and made clear, in paragraphs 61 to 64 of the judgment under appeal, that the appellant’s claim that it had no right of action under national law to challenge the Republic of Poland’s decision to recover the public funds released for the purposes of the appellant’s project could not affect the conditions for the admissibility of its action for annulment, the General Court stated that, in those circumstances, the appellant could not be regarded as directly affected by the decision at issue. It therefore held that the action brought by the appellant was inadmissible.
 Forms of order sought by the parties to the appeal

11      The appellant claims that the Court should set aside the judgment under appeal.

12      The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.
 The appeal

13      Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

14      That provision should be applied in the present case.

15      In support of its appeal, the appellant relies, in essence, on two grounds of appeal, alleging that the General Court, first, failed to observe the principle of effective judicial protection and, second, erred in finding that the prospect of the Republic of Poland maintaining its financial contribution to the project in the case of refusal to grant a financial contribution from the ERDF was hypothetical.
 The first ground of appeal

 Arguments of the parties

16      By its first ground of appeal, the appellant claims that the General Court erred in finding that judicial review of the decision at issue by way of request for a preliminary ruling would afford the appellant effective judicial protection of its rights under EU law.

17      It maintains that such proceedings would be neither effective nor rational since a national court before which an action was brought would be likely to hold that the case before it was hypothetical, given that JYSK and the Republic of Poland do not disagree as to the terms of the contract or, in particular, to its performance.

18      The appellant submits that, in any event, such a national court would have no power to annul the decision at issue.

19      Furthermore, the appellant draws attention to the fact that, although the Republic of Poland has itself brought an action before the General Court for annulment of the decision at issue, the appellant could not be a party to those proceedings.

20      According to the appellant, it is therefore necessary, in order to observe the principle of effective judicial protection, for it to have locus standi for the purposes of bringing an action for annulment of the decision at issue.

21      The Commission contends that this ground of appeal is unfounded.
 Findings of the Court

22      As a preliminary matter, it should be noted that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside, and the legal arguments specifically advanced in support of the appeal. A ground of appeal does not meet those requirements if it does not contain any legal argument to demonstrate the manner in which the General Court allegedly erred in law, and merely constitutes a request to have the action brought at first instance re-examined, in breach of the rules imposed by both the Statute of the Court of Justice and its Rules of Procedure (orders of 16 May 2013, Caixa Geral de Depósitos v Commission, C‑242/11 P, not published, EU:C:2013:306, paragraph 22, and of 6 April 2017, Gaki v Parliament, C‑610/16 P, not published, EU:C:2017:289, paragraph 13).

23      In the present case, the appellant has in its first ground of appeal pointed only to one paragraph of the judgment under appeal, namely paragraph 62, as capable of being vitiated by an error in law.

24      In that regard, it should be noted, in response to the appellant’s argument that it was unable to bring an action against the Member State and should therefore be regarded as directly affected by the decision at issue, that the General Court stated in paragraph 61 of the judgment under appeal, first of all, that it should be borne in mind that, although individuals are entitled to effective judicial protection of the rights they derive from the Union legal order, invoking the right to such protection cannot, however, call into question the conditions laid down in the fourth paragraph of Article 263 TFEU.

25      Next, in paragraph 62 of the judgment under appeal, the General Court stated that the appellant could have objected, before the competent national court, to the termination of the contract or the reimbursement requested by the Polish authorities under that contract, by pleading that the decision at issue triggering those requests was invalid.

26      Aside from the fact that the appellant calls into question such a contention, despite the fact that it stated, in its appeal, that it has brought an action before the Polish courts for the purposes of a review of the legality of the Polish State’s decision to withdraw its support for the appellant’s project, the Court points out that by its first ground of appeal the appellant merely asserts that it should, in principle, be entitled to a practical, effective right of access to the courts to challenge the decision at issue, but has not stated how the case-law on which the General Court relied in paragraph 61 of the judgment under appeal does not apply to the appellant.

27      Accordingly, in the absence of any further line of argument, the first ground of appeal must be dismissed as manifestly inadmissible.
 The second ground of appeal

 Arguments of the parties

28      In support of the second ground of appeal, the appellant claims, first of all, as is clear from paragraphs 22 and 49 of the judgment under appeal, that the General Court did not take account of its arguments in respect of the purely hypothetical nature of the possibility that the Republic of Poland continues to finance the project.

29      Next, the appellant maintains that the General Court wrongly held that the appellant was not the direct recipient of the financial contribution from the ERDF, the grant of which was refused by virtue of the decision at issue.

30      Lastly, the General Court did not take account of the incentive effect which the financial contribution from the ERDF was capable of provoking in favour of a contribution of the Republic of Poland to the financing of the project.

31      The Commission contends that the Court should dismiss the second ground of appeal.
 Findings of the Court

32      First of all, as far as concerns the claim, as the appellant contends is apparent from paragraphs 22 and 49 of the judgment under appeal, that the General Court did not take account of the arguments pleaded by the appellant in respect of the purely hypothetical nature of the possibility that the Republic of Poland continue to finance the project, this Court finds that the appellant has not made any submission pointing to an error in law made by the General Court.

33      Next, as far as concerns the argument that the General Court failed to regard the appellant as the direct recipient of the financial contribution from the ERDF, the grant of which was refused by virtue of the decision at issue, the appellant merely states that the Republic of Poland considered it necessary to demand reimbursement of its financial contribution to the project and refers, in that connection, to Article 98 of Regulation No 1083/2006 concerning the obligation of the Member States to make the financial corrections in the event of individual or systemic irregularities detected in operations or operational programmes.

34      First, it is obvious that the facts of the case as set out by the General Court, which have not been contested by the appellant, do not fall within the scope of the provision on which it relies, since the present case does not concern financial corrections due to irregularities but the refusal to grant a contribution from the ERDF.

35      Second, the appellant has not indicted to what extent the Republic of Poland’s decision to recover the sums paid to the appellant for the implementation of the project is not the result of that Member State’s termination of the contract. At the very least, the appellant has not advanced any argument capable of pointing to an error in law appearing in the grounds for the General Court’s decision, in particular in paragraphs 38 to 42 of the judgment under appeal.

36      Lastly, as regards the argument that the appellant derives standing from the incentive effect on the decision-making process, the Court finds that the appellant has failed to indicate the part of the judgment under appeal to which that argument refers, and has similarly not indicated the extent to which the further development of that argument is likely to derive from an error in law made by the General Court.

37      In the light of all the foregoing considerations, the Court dismisses the second ground of appeal as manifestly inadmissible.

38      The appeal must therefore be dismissed in its entirety as manifestly inadmissible.
 Costs

39      Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 138(1) of those Rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the appellant and the latter has been unsuccessful, the appellant must be ordered to pay the costs of this appeal.
On those grounds, the Court (Tenth Chamber) hereby orders:
1.      The appeal is dismissed as manifestly inadmissible.

2.      JYSK sp. z o.o. shall pay the costs.

Luxembourg, 17 May 2018.

A. Calot Escobar
 
E. Levits

Registrar
 
President of the Tenth Chamber

*      Language of the case: English.