CELEX: C2002/191/27
Language: en
Date: 2002-08-10 00:00:00
Title: Case C-188/02 P: Appeal brought on 21 May 2002 against the judgment delivered on 6 March 2002 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-92/00 and T-103/00 (not yet published) between Territorio Histórico de Álava — Diputación Foral de Álava and Others and Commission of the European Communities

C 191/16                 EN                   Official Journal of the European Communities                                       10.8.2002
Appeal brought on 21 May 2002 against the judgment                       Action brought on 27 May 2002 by the Kingdom of the
delivered on 6 March 2002 by the Third Chamber,                          Netherlands against the Commission of the European
Extended Composition, of the Court of First Instance of                                             Communities
the European Communities in Joined Cases T-92/00 and
T-103/00 (not yet published) between Territorio His-
tórico de Álava — Diputación Foral de Álava and Others                                        (Case C-193/02)
      and Commission of the European Communities
                                                                                                  (2002/C 191/28)
                          (Case C-188/02 P)
                           (2002/C 191/27)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 27 May 2002 by the Kingdom of the
An appeal against the judgment delivered on 6 March 2002
                                                                         Netherlands, represented by H.G. Sevenster, acting as agent.
by the Third Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Joined Cases
T-92/00 and T-103/00 between Territorio Histórico de Álava
— Diputación Foral de Álava and Others and Commission of               The applicant claims that the Court should:
the European Communities was brought before the Court of
Justice of the European Communities on 21 May 2002 by
Territorio Histórico de Alava — Diputación Foral de Alava,             1.    Annul Commission Decision C(2002) 970 of 12 March
represented by Antonio Creus Carreras and Begoña Uriarte                      2002 reducing by 31,3 %, that is to say by
Valiente, Abogados, of Calle Velázquez no 63, Madrid.                         EUR 147 459 365, the assistance granted from the
                                                                               European Social Fund under Commission decisions
                                                                               approving certain programme documents for Com-
The appellant claims that the Court should:                                    munity structural measures in the Netherlands under
                                                                               objectives 1, 2, 3 and 5b;
1.    declare the present appeal admissible and consequently:
                                                                         2.    Order the Commission to pay the costs.
2.    set aside the judgment of the Court of First Instance of
      6 March 2002;
3.    itself give final judgment in the matter on the basis of the
      appellant’s pleadings at first instance and, in particular,        Pleas in law and main arguments
      annul the decision of the Commission of 22 December
      1999 inasmuch as the tax credit of 45 % of investment              —     Commission’s lack of competence: The Commission
      and the reduction of the taxable amount provided for by                  bases the financial sanction on an (alleged) infringement
      Alava regional legislation in respect of newly-established               of the obligation imposed on the Netherlands by
      undertakings does not constitute aid within the meaning                  Article 23 of Council Regulation (EEC) No 2082/93 (1) to
      of Article 87 EC or, if it should be deemed so to be, is                 establish an adequate management and control system in
      existing aid, pursuant to Article 88 EC and Article 1 of                 order to ensure the efficient implementation of the
      the State aid Rules;                                                     programmes. However, Article 24 of Regulation
                                                                               No 2082/93, on which the financial sanction at issue is
4.    in the alternative, refer the case back to the Court of First            based, does not refer to that obligation but merely
      Instance for judgment, if the Court of Justice should deem               authorises the Commission to reduce or suspend the
      that appropriate;                                                        assistance for the relevant operation or measure if an
                                                                               irregularity occurs ‘in respect of the operation or measure’.
5.    order the Commission to pay the costs in both sets of                    Thus, a financial correction, as referred to in that article,
      proceedings.                                                             may be applied only in the event of irregularities relating
                                                                               to implementation itself or to ‘the nature or conditions
                                                                               for the implementation’ of a (specific) operation or a
                                                                               (specific) measure. At most the financial correction may
                                                                               relate to the amounts established to have been unduly
Pleas in law and main arguments                                                paid; in that connection, therefore, each irregularity must
                                                                               be established individually. A financial correction cannot
                                                                               be based on general failings or defects in the management
are similar to those put forward in Case C-187/02 P.                           and control system governing the implementation of one
                                                                               or (as in this case) several operations or measures. Even if
                                                                               there is a defect in a management and control system,
                                                                               that does not mean that that shortcoming affects the