CELEX: C2003/200/32
Language: en
Date: 2003-08-23 00:00:00
Title: Case C-274/03: Action brought on 24 June 2003 by the Commission of the European Communities against Ireland

C 200/18                 EN                        Official Journal of the European Union                                            23.8.2003
Pleas in law and main arguments                                            not developed until several years after the conclusion of the
                                                                           projects in issue in circumstances where the procedures used
                                                                           were at all times in accordance with best practice at the time
The Applicant submits that Commission Decision                             as approved by the Commission amounts to a retrospective
C(2003)1084 should be annulled on the following grounds:                   application of Community rules by the Commission.
I. Manifest error of approach or assessment by the Commis-                 IV. Breach of the principle of proportionality and/or the
    sion                                                                         principles in relation to the imposition of penalties
a)      The Irish Authorities do not accept the validity of the            The Commission clearly had available alternatives to the deci-
        extrapolation exercise purportedly carried out by the              sion adopted in this case. The approach adopted by the
        Commission and submit that extrapolation is not an                 Commission is out of all proportion to the result intended to
        acceptable methodology for establishing a monetary                 be achieved having regard to the ongoing efficacy of the
        repayment value in the case of very broadly-based grant            projects in issue and the nature of the project beneficiary.
        schemes such as the Operational Programme for Tourism,             Such an approach effectively amounts to the imposition of a
        1989 — 1993. Further, it is submitted that the Commis-             penalty in circumstances where there is no evidence of any
        sion has failed to identify the legal basis on which the           wrongdoing on the part of any undertaking or authority.
        extrapolation exercise it has purported to carry out is
        based.
                                                                           (1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
                                                                               laying down provisions for implementing Regulation (EEC)
                                                                               No 2052/88 as regards coordination of the activities of the
b)      The application by the Commission of its own definition                different Structural Funds between themselves and with the opera-
        of the meaning of the terms of Article 23 of Regulation                tions of the European Investment Bank and the other existing
        4253/88 (1) in a manner that permits it to extend the                  financial instruments OJ L 374, 31.12.1988, p. 1-14.
        scope of its powers amounts to an infringement of the
        express provisions of that article and constitutes a mani-
        fest error of assessment on the part of the Commission in
        the exercise of its discretion pursuant to Article 24
        thereof.
c)      It is manifestly erroneous of the Commission to seek to
        justify imposing a penalty on Ireland on the basis of
        Datasheets, published in April 1997, several years after           Action brought on 24 June 2003 by the Commission of
        the Programme finished on the basis that they represented                     the European Communities against Ireland
        a codification of previously established practice, when this
        general practice had not been established by either the
        Commission or the European Court of Auditors in their                                          (Case C-274/03)
        monitoring of the Programme.
                                                                                                       (2003/C 200/32)
d)      It is furthermore submitted that the Commission was
        manifestly wrong in concluding that there were errors or
        risks inherent in the reporting system developed by the
        Irish authorities.                                                 An action against Ireland was brought before the Court of
                                                                           Justice of the European Communities on 24 June 2003 by the
                                                                           Commission of the European Communities, represented by
II. Infringement of a fundamental rule of law relating to the              Mr Georges Zavvos, acting as agent, with an address for service
     implementation of the Treaty                                          in Luxembourg.
In exercising its discretion pursuant to Article 24 of Regulation          The Applicant claims that the Court should:
4253/88, the Commission misdirected itself or was wrong in
law in failing to take account of the matters pleaded in the
application. The Commission approach is in breach of the                   1)     declare that, by failing to adopt the laws, regulations and
provisions of inter alia, articles 23 and 24 of Regulation                        administrative provisions necessary to comply with Direc-
4253/88.                                                                          tive 2000/26/EC of the European Parliament and of the
                                                                                  Council of 16 May 2000 on the approximation of the
                                                                                  laws of the Member States relating to insurance against
                                                                                  civil liability in respect of the use of motor vehicles and
III. Failure to respect the principles of non-retrospectivity,                    amending Council Directives 73/239/EEC and 88/357/EEC
      legal certainty, and legitimate expectation                                 (Fourth motor insurance Directive), published in the Offi-
                                                                                  cial Journal L 181, 20.07.2000, p. 65-74, or in any event
                                                                                  by failing to communicate them to the Commission,
The retrospective application of standards for financial manage-                  Ireland has failed to fulfil its obligations under the Direc-
ment, and in particular the issue of eligibility criteria, that were              tive;
 ---pagebreak--- 23.8.2003             EN                        Official Journal of the European Union                                            C 200/19
   2)    order Ireland to pay the costs.                                    —     It also wrongly failed to give any, or any sufficient
                                                                                  weight to the fact that it is the recipient of aid that
                                                                                  particularly requires protection in cases where
                                                                                  Article 15 applies.
   Pleas in law and main arguments
   The period within which the directive had to be transposed               —     The Court of First Instance should not have held that
   expired on 20 July 2002.                                                       the characterisation of the recipient of aid as merely an
                                                                                  ‘information source’ in the course of the procedure
                                                                                  under Article 88(2) EC supported its conclusion.
                                                                            —     The Court of First Instance wrongly failed to take
   Appeal brought on 25 June 2003 by Scott SA against                             account of the wording of Articles 14 and 15 which
   the judgment delivered on 10 April 2003 by the Fifth                           indicates that Article 15 is concerned with the liability
   Chamber, Extended Composition, of the Court of First                           of recipients of aid.
   Instance of the European Communities in case T-366/
   00 between Scott SA, supported by the French
   Republic, and the Commission of the European                             —     The Court of First Instance wrongly failed to recognise
                             Communities                                          that the consequence of its interpretation of Article 15
                                                                                  was to frustrate the purpose of that Article, that is to
                          (Case C-276/03 P)                                       say, to provide legal certainty to recipients of aid.
                           (2003/C 200/33)
                                                                            The Court of First Instance was wrong to hold that the
                                                                            absence of a ‘duty’ on the part of the Commission to ‘warn’
   An appeal against the judgment delivered on 10 April 2003                recipients of interrupting actions was relevant to the ques-
   by the Fifth Chamber, Extended Composition, of the Court                 tion of whether an action of which the recipient had no
   of First Instance of the European Communities in case                    notice could interrupt the limitation period as against it.
   T-366/00 between Scott SA, supported by the French
   Republic, and the Commission of the European Commu-
   nities (1), was brought before the Court of Justice of the               The Court of First Instance was wrong to hold that
   European Communities on 25 June 2003 by Scott SA,                        Article 15 created a single limitation period that applied in
   established in Saint-Cloud (France), represented by Sir                  the same way to the Member State concerned and to ‘third
   Jeremy Lever KCMG, QC, and G. Peretz, Barristers, and                    parties’; alternatively, it was wrong to hold that such a
   A. Nourry and R. Griffith, Solicitors, with an address for               principle operated so as to exclude the application of the
   service in Luxembourg.                                                   limitation rule as sought by Scott.
   The Appellant claims that the Court should:
                                                                            The Court of First Instance was wrong to regard it as
   —     set aside the decision of the Court of First Instance              relevant to the application of Article 15 that Scott could
         dismissing Scott's application for annulment of                    have had no legitimate expectation that the aid was lawfully
         Article 2 of the Decision (2) in so far as Scott's                 granted originally; the purpose of Article 15 is to provide
         application alleges that the Commission infringed                  legal certainty where, ex hypothesi, the aid was not lawfully
         Article 15 of the Regulation;                                      granted.
   —     annul Article 2 of the Decision, in so far as it
         concerns the alleged aid granted in the form of a
         preferential land price referred to in Article 1 of the            The Court of First Instance wrongly disregarded the wording
         Decision; and                                                      of Article 15 and failed to address an important argument
                                                                            addressed to it by Scott, summarised by the Court of First
   —     order the Commission to pay the costs of this appeal,              Instance at paragraph 42 of the judgment.
         including the costs incurred by Scott at first instance.
                                                                            The Court of First Instance was wrong to treat it as relevant
   Pleas in law and main arguments                                          that there was no limitation rule in force on the expiry of
                                                                            10 years from the grant of the aid to Scott.
   The Appellant submits that the judgment of the Court of
   First Instance should be set aside on the following grounds:
                                                                        (1) OJ C 61, 24.02.2001, p. 16.
                                                                        (2) 2002/14/EC: Commission Decision of 12 July 2000 on the state
   The Court of First Instance was wrong to apply the newly                 aid granted by France to Scott Paper SA Kimberly-Clark (Text with
   introduced provisions of Article 15 of Regulation 659/                   EEA relevance) (notified under document number C(2000) 2183)
   99 (3)as if they were governed by the old case-law relating              (OJ L 12, 15.01.2002, p. 1).
   to the conduct of administrative procedures.                         (3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
                                                                            down detailed rules for the application of Article 93 of the EC
   —     The Court of First Instance should have recognised that            Treaty (OJ L 83, 27.03.1999, p. 1).
         the Regulation established a Community State aid
         regime that is, in important and relevant respects, new.