Sviluppo Italia Basilicata SpA v European Commission.
Date: 2010-03-25
44. In that connection, the Court of First Instance held, at paragraph 93 of the judgment under appeal, that the Commission did not have any discretion as to the inferences to be drawn from the fact that, on 31 December 2001, part of the capital paid into the VCF had not been invested in SMEs. It referred in that regard to Case C-84/96 Netherlands v Commission  [1999] ECR I‑6547, paragraphs 22, 23 and 47, and added that if account were taken of the various facts relied on by the appellant, that would not only be tantamount to an acknowledgement that the rules in Datasheet No 19 had been infringed but would also enable it to take advantage of its misinterpretation.
The claim for damages
51. In its defence, the Commission repeats, as a preliminary point, the arguments it put forward at first instance concerning the admissibility of the claim for annulment of the contested decision. It points out in particular that, since the appellant was not the addressee of the decision, which was addressed to the Italian Republic, it was not directly concerned by the decision for the purposes of the fourth paragraph of Article 230 EC. It states that since, in any event, as is apparent from the Court’s case-law, where the court decides at first instance that there is no need to rule on a plea of inadmissibility raised by one party but then grants that party’s substantive application, such a decision cannot be challenged (see, in particular, Case C-23/00 P Council  v Boehringer  [2002] ECR I‑1873, paragraphs 50 and 51), it does not intend to ask the Court to set aside the judgment under appeal inasmuch as a ruling was not given on the plea of inadmissibility raised at first instance.
83. According to the appellant, in adjudicating, at paragraph 79 of the judgment under appeal, on the plea for annulment alleging infringement of Articles 25 and 26 of Regulation No 4253/88, the Court of First Instance misinterpreted the judgment in Mediocurso v Commission , according to which, in all proceedings against a person, respect for that person’s rights of defence must be guaranteed even in the absence of any specific rules in that connection. The Court confined the possibility of applying that rule to the sole situation in which it is relied on as being necessary to safeguard the rights of the defence. It therefore adopted an interpretation which is at odds with that followed by the courts of the European Union, for which the application of that rule is unconditional. The appellant refers in this connection to Case C-287/02 Spain v Commission  [2005] ECR I‑5093, paragraph 37; Case C‑44/06 Gerlach  [2007] ECR I‑2071, paragraph 38; and judgment of 8 March 2007 in Case T‑65/04 Nuova Gela Sviluppo  v Commission , paragraph 53.
114. In an appeal, the Court’s jurisdiction is confined to review of the assessment by the Court of First Instance of the pleas argued before it (see Joined Cases C‑199/01 P and C‑200/01 P IPK-München v Commission [2004] ECR I‑4627, paragraph 52 and the case-law cited). To allow a party to adduce for the first time before the Court of Justice evidence which it has not produced before the Court of First Instance would in effect allow that party to bring before the Court, whose jurisdiction in appeals is limited, a case wider in ambit than that heard by the Court of First Instance (Case C‑266/05 P Sison  v Council  [2007] ECR I‑1233, paragraph 95).
119. Second, according to the established case-law of the Court of Justice, there is distortion of the clear sense of the evidence where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect (Case C‑229/05 P PKK and KNK  v Council  [2007] ECR I-439, paragraph 37, and also, to that effect, Case C 551/03 P General Motors  v Commission [2006] ECR I‑3137, paragraph 54, and Case C‑326/05 P Industrias Químicas del Vallés v Commission  [2007] ECR I‑6557, paragraph 60).
129. As the Advocate General stated at point 208 of her Opinion, according to the Court’s case-law, when adopting a decision based on Article 24 of Regulation No 4253/88, the Commission is not required to request repayment of the financial assistance in full, but may decide to set the proportion to be repaid. However, the Commission must exercise this power in a manner that is consistent with the principle of proportionality, in such a way that repayments which it orders are not disproportionate to the irregularities committed (see Case C‑240/03 P Comunità montana della Valnerina  v Commission  [2006] ECR I‑731, paragraph 140).
138. It should be noted, first, as stated in the judgment under appeal, that according to the established case-law of the Court of Justice, the European Union may incur non-contractual liability for the purposes of the second paragraph of Article 340 TFEU only if three conditions are fulfilled, namely the unlawfulness of the conduct of which the Union institutions are accused, the occurrence of actual damage and the existence of a causal link between that conduct and the harm alleged (see, inter alia, Case C‑257/98 P Lucaccioni  v Commission  [1999] ECR I‑5251, paragraph 11, and Joined Cases C‑162/01 P and C‑163/01 P Bouma and Beusmans  v Council and Commission  [2004] ECR I‑4509, paragraph 43).
141. However, there is no need for the Court to adjudicate on the possibility of liability being incurred on the part of the European Union for harm caused by a lawful act in circumstances such as those in the present case and it is sufficient to state that the Court of First Instance was entitled, without erring in law, to reject that plea, since the material and non-material damage alleged by the appellant are not, in any event, unusual or special. Any economic loss, even if it existed, and the alleged damage to the appellant’s reputation are consequences to be expected by an experienced operator as a result of a decision adopted on the basis of Article 24 of Regulation No 4253/88 to reduce the amount of assistance originally granted.