Judgments nº T-512/14 of The General Court, May 04, 2017

• Resolution Date: May 04, 2017
• Issuing Organization: The General Court
• Decision Number: T-512/14

(Action for annulment - ERDF - Article 41(3) of Regulation (EC) No 1083/2006 - Refusal to grant a financial contribution to a major project - Undertaking responsible for project implementation - Lack of direct concern - Inadmissibility)

In Case T-512/14,

Green Source Poland sp. z o.o., established in Warsaw (Poland), represented by M. Merola and L. Armati, lawyers,

applicant,

v

European Commission, represented initially by M. Clausen and B.-R. Killmann, and subsequently by B.-R. Killmann and R. Lyal, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU seeking annulment of Commission Decision C(2014) 2289 final of 7 April 2014 refusing to make a financial contribution from the European Regional Development Fund (ERDF) to the major project ‘Purchase and implementation of innovative manufacturing technology of biocomponents to produce biofuels’ forming part of the operational programme ‘Innovative Economy’ for structural interventions under the ‘Convergence’ objective in Poland,

THE GENERAL COURT (Seventh Chamber),

composed of M. van der Woude, President, I. Ulloa Rubio and A. Marcoulli (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 24 November 2016,

gives the following

Judgment

Background to the dispute

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 application that, on 12 May 2008, following the adoption of national provisions implementing the operational programme ‘Innovative Economy’, the applicant, Green Source Poland sp. z o.o., a Polish company governed by private law incorporated in December 2004 with the sole purpose of building and operating a bioethanol production plant in Poland, submitted to the Polish authorities a grant application in respect of the project ‘Purchase and implementation of innovative manufacturing technology of biocomponents to produce biofuels’ (‘the project’), and that, on 25 April 2012, 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 It is clear from the contract that 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 (see Article 1(4) of the contract). In addition, it was provided, in particular, 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(24) 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(26) of the contract).

4 On 10 September 2012, the Republic of Poland applied to the Commission, under Articles 39 to 41 of Regulation No 1083/2006, for a financial contribution from the ERDF in respect of 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 Polish Ministry of Regional Development as the ‘authority responsible for the application’ and the applicant as the ‘organisation responsible for project implementation (beneficiary)’.

5 By letter of 27 November 2012 sent to the Republic of Poland, the Commission expressed doubts as to whether it would be able to confirm a contribution from the ERDF to the project in the light, in particular, of certain problems relating to the context of the revision of the regulatory framework concerning biofuels, the fact that the project lacked innovativeness, the lack of information in the feasibility study, and State aid. It invited the Republic of Poland to consider the possibility of withdrawing the project or, if appropriate, of submitting additional information.

6 By letter of 25 January 2013, the Republic of Poland replied to the Commission’s comments by forwarding, inter alia, a document containing the applicant’s answers to the questions raised by the Commission.

7 By letter of 6 May 2013 to the Republic of Poland, the Commission maintained its position as regards the fact that the project did not meet some of the requirements laid down in Article 40 of Regulation No 1083/2006, in the light of its lack of innovativeness, the doubts as to its economic viability and the fact that some information was missing from the Environmental Impact Assessment.

8 By letter of 5 July 2013, the Republic of Poland replied to the Commission’s comments by forwarding a document containing the applicant’s answers to the questions raised by the Commission.

9 On 17 July 2013, at the request of the applicant, a meeting was held in Brussels (Belgium) between the applicant’s representatives and the Commission’s staff.

10 By letter of 24 July 2013 sent to the Republic of Poland, the Commission confirmed its position that the project did not meet some of the requirements laid down in Article 40 of Regulation No 1083/2006, in the light of its lack of innovativeness, the doubts as to its economic viability, its environmental impact, and its consistency with EU environmental policies. The Commission invited the Republic of Poland to submit its observations and stated that, should its assessment be confirmed, it would adopt a negative decision in respect of the project.

11 By letter of 24 September 2013, the Republic of Poland replied to the Commission’s comments by forwarding a document containing the applicant’s answers to the questions raised by the Commission.

12 On 7 April 2014, on the basis of Article 41(3) of Regulation No 1083/2006, the Commission adopted Decision C(2014) 2289 final (‘the contested decision’), by which it refused to make a financial contribution to the project (Article 1). The contested decision states that any expenditure relating to the project set out in a statement of expenditure predating the decision must be rectified in the subsequent statement of expenditure (Article 2). The contested decision is addressed to the Republic of Poland (Article 3).

Procedure and forms of order sought

13 By application lodged at the Court Registry on 26 June 2014, the applicant brought the present action, claiming that the Court should:

- annul the contested decision;

- order the Commission to pay the costs.

14 By separate document lodged at the Court Registry on 2 October 2014, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, contending that the Court should:

- dismiss the action as inadmissible;

- order the applicant to pay the costs;

15 The applicant lodged its observations regarding the plea of inadmissibility at the Court Registry on 21 November 2014, claiming that the Court should:

- dismiss the Commission’s objections and declare the action admissible;

- set a time limit for the Commission to reply in respect of the substance of the case;

- order the Commission to pay the costs of that stage of the proceedings.

16 By order of the General Court (Fourth Chamber) of 25 March 2015, consideration of the plea of inadmissibility was reserved for the final judgment and the costs were reserved.

17 On 7 May 2015, the Commission lodged its defence at the Court Registry, contending that the Court should:

- declare the action inadmissible;

- in the alternative, dismiss the action as unfounded;

- order the applicant to pay the costs;

18 The applicant lodged its reply at the Court Registry on 3 July 2015 and the Commission filed its rejoinder with the Court Registry on 22 September 2015.

19 By document lodged at the Court Registry on 12 November 2015, the applicant requested a hearing.

20 By document lodged at the Court Registry on 14 December 2015, the Commission applied for the present case to be joined to Case T-403/15, JYSK v Commission. The applicant lodged its observations regarding the application for joinder on 6 January 2016. By decision of 18 March 2016, the President of the Fourth Chamber of the General Court decided not to join the two cases at that stage of the procedure.

21 The parties presented oral argument and gave their replies to the Court’s questions at the hearing on 24 November 2016.

Law

Preliminary observations

22 It must be borne in mind that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against a decision addressed to that person 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 the former, and against a regulatory act which is of direct concern to him and does not entail implementing measures.

23 Furthermore, according to settled case-law of the Court of Justice, only measures which produce binding legal effects and are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position constitute an act or a decision which may be the subject of an action for...