Commission of the European Communities v Ente per le Ville Vesuviane (C-445/07 P) and Ente per le Ville Vesuviane v Commission of the European Communities (C-455/07 P).
Date: 2009-09-10
40. In accordance with settled case‑law, an appeal brought against a judgment of the Court of First Instance is admissible in so far as the latter has rejected a plea of admissibility raised by one party against an action, even though the Court of First Instance subsequently in the remainder of the same judgment dismissed that action as being unfounded (see Council  v Boehringer , paragraph 50; Commission  v max.mobil , paragraphs 50 and 51; and Case C‑362/05 P Wunenburger  v Commission  [2007] ECR I‑4333, paragraph 37).
42. For the purpose of ruling on whether the appeal brought by the Commission is well founded, it is necessary to state that, on the basis of the fourth paragraph of Article 230 EC, a local or regional entity may, to the extent that it has legal personality under national law, institute proceedings against a decision addressed to it or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to it (see Case C‑452/98 Nederlandse Antillen  v Council  [2001] ECR I‑8973, paragraph 51 and Case C‑142/00 P Commission  v Nederlandse Antillen  [2003] ECR I‑3483, paragraph 59).
45. In that regard, it follows from settled case‑law that in order to satisfy the requirement that the decision forming the subject-matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 230 EC, two cumulative criteria must be met, namely, first, the contested Community measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see Case C‑404/96 P Glencore Grain  v Commission  [1998] ECR I‑2435, paragraph 41; Case C‑486/01 P National Front  v Parliament  [2004] ECR I‑6289, paragraph 34; and Case C‑417/04 P Regione Siciliana v Commission , paragraph 28; as well as Case C‑15/06 P Regione Siciliana  v Commission , paragraph 31).
46. The same applies where the possibility that addressees will not give effect to the measure concerned is purely theoretical and their intention to act in conformity with it is not in doubt (Case C‑386/96 P Dreyfus  v Commission  [1998] ECR I‑2309, paragraph 44; see also, to that effect, Case 11/82 Piraiki‑Patraiki and Others  v Commission  [1985] ECR 207, paragraphs 8 to 10).
47. With regard to the first criterion, the Court has already held that the designation of a regional or local entity in a decision to grant Community financial assistance as the authority responsible for the implementation of an ERDF project does not imply that that entity is itself entitled to the assistance (Case C‑417/04 P Regione Siciliana  v Commission , paragraphs 29 and 30, and Case C‑15/06 P Regione Siciliana  v Commission , paragraph 32).
48. In addition, neither does the fact that that entity is referred to as the authority responsible for the application for financial assistance have the effect of placing it in a direct relationship with the Community financial assistance, which the decision to grant states was applied for and granted to the Member State concerned (C‑15/06 P Regione Siciliana  v Commission , paragraph 36).
51. In those circumstances, as the Advocate General pointed out in point 50 of her Opinion, it is the Italian State, as the addressee of the contested decision, which must be considered to be entitled to the financial assistance in question.
57. It follows that, contrary to the Court of First Instance’s finding in paragraphs 46 to 48 of the judgment under appeal, the fact that, in a letter sent to the Commission, the Italian authorities expressed their intention of recovering from Ente the financial consequences of any Commission decision to withdraw the Community financial assistance is insufficient for the purpose of establishing the direct interest required by the fourth paragraph of Article 230 EC.
58. The Court has held, by way of exception, that, despite the absence of implementing measures adopted at the national level, the applicant may be ‘directly concerned’ within the meaning of the fourth paragraph of Article 230 EC where other factors, including the purely hypothetical power not to give effect to the contested decision, imply the existence of direct concern in its regard (see, to that effect, Dreyfus  v Commission , paragraphs 47 and 52, and Piraiki‑Patraiki and Others  v Commission , paragraphs 7 and 9 to 10).
60. As stated by the Advocate General in point 64 of her Opinion, the findings of the Court of First Instance are insufficient to draw inferences regarding the subsequent conduct of the addressee of the contested decision. It is not possible solely from the legally non‑binding pronouncement by the Italian authorities of their intention to recover the assistance from Ente to arrive at the conclusion that Ente is directly concerned, since, amongst other things, it cannot be ruled out that special circumstances might lead the Italian State, as one of Ente’s shareholders, to forebear from claiming the repayment from Ente.
61. The case‑law on State aid cited by Ente in the context of its appeal is also irrelevant. Unlike the practice generally followed by the Commission with regard to State aid declared to be incompatible with the common market, the decisions of which contain provisions calling on Member States to recover the sums wrongly paid from the beneficiaries, the contested decision did not place the Member State concerned, as pointed out already in paragraph 53 above, under an obligation to recover the sums from the ultimate beneficiaries.
65. Whilst individuals are entitled to effective judicial protection of the rights they derive from the Community legal order ( Unión de Pequeños Agricultores  v Council , paragraph 39; Commission  v Jégo-Quéré , paragraph 29; and C‑15/06 P Regione Siciliana  v Commission , paragraph 39), invoking the right to such protection cannot call into question the conditions laid down in Article 230 EC.
66. In accordance with settled case‑law, the judicial protection of natural or legal persons who are unable, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, directly to challenge Community measures of the type of the contested decision, must be effectively guaranteed by a right of action before national courts. The latter are required, in accordance with the principle of cooperation in good faith laid down by Article 10 EC, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables those persons to challenge before the courts the legality of any decision or other national measure relating to the application to them of a Community act such as that at issue, by pleading the invalidity of such an act and by asking them to make a reference to the Court of Justice for a preliminary ruling on validity (see Unión de Pequeños Agricultores  v Council , paragraphs 40 to 42, and Commission  v Jégo-Quéré , paragraphs 30 to 32; see also C‑15/06 P Regione Siciliana  v Commission , paragraph 39).