Judgments nº T-403/15 of The General Court, May 04, 2017

• Resolution Date: May 04, 2017
• Issuing Organization: The General Court
• Decision Number: T-403/15

(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-403/15,

JYSK sp. z o.o., established in Radomsko (Poland), represented by H. Sønderby Christensen, lawyer,

applicant,

v

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

defendant,

APPLICATION based on Article 263 TFEU seeking annulment of Commission Decision C(2015) 3228 of 11 May 2015, refusing to make a financial contribution from the European Regional Development Fund (ERDF) to the major project ‘European Shared Services Centre - Intelligent Logistics Systems’ forming part of the operational programme ‘Innovative Economy’ drawn up by the Republic of Poland for the 2007-2013 programming period.

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 file that the applicant, JYSK sp. z o.o., a Polish company governed by private law, submitted to the Polish authorities, on 17 July 2008, a grant application in respect of the project ‘European Shared Services Centre - Intelligent Logistics Systems’ (‘the project’) and that, on 18 February 2009, 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 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. In addition, it is apparent from the contract, as amended on 19 April 2010, 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(12) 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(14) of the contract).

4 On 30 April 2010, the Republic of Poland submitted to the Commission, under Articles 39 to 41 of Regulation No 1083/2006, a request for confirmation of the financial contribution from the ERDF in respect of the project.

5 Following an exchange of letters between the Republic of Poland and the Commission, the Commission having expressed doubts as to whether it would be able to confirm that a contribution would be made from the ERDF to the project, the Republic of Poland withdrew, by letter of 15 July 2011, the request for confirmation of the ERDF’s financial contribution. By letter of 3 August 2011, the Commission took formal notice of the withdrawal of the request and again informed the Republic of Poland of the problems relating to the project. The project was completed in 2011 after the withdrawal of the request for confirmation.

6 On 1 August 2013, the Republic of Poland submitted to the Commission a new request for confirmation of the ERDF’s financial contribution to 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 applicant as the ‘organisation responsible for project implementation (beneficiary)’.

7 By letter of 24 June 2014, the Commission expressed doubts regarding the new project proposal. By letter of 28 August 2014, the Republic of Poland replied to the Commission’s observations.

8 On 11 May 2015, on the basis of Article 41(3) of Regulation No 1083/2006, the Commission adopted Decision C(2015) 3228 (‘the contested decision’), by which it refused to grant a financial contribution to the project (Article 1). The contested decision states that any expenditure relating to the project included in a statement of expenditure predating that 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

9 By application lodged at the Court Registry on 22 July 2015, the applicant brought the present action, claiming that the Court should annul the contested decision.

10 By separate document lodged at the Court Registry on 15 October 2015, 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.

11 The applicant lodged its observations regarding the plea of inadmissibility at the Court Registry on 1 December 2015, claiming that the Court should:

- reject the plea of inadmissibility;

- declare the action admissible.

12 By document lodged at the Court Registry on 14 December 2015, the Commission applied for the present case to be joined to Case T-512/14, Green Source Poland v Commission. The applicant lodged its observations regarding the application for joinder at the Court Registry on 8 February 2016. The President of the Fourth Chamber of the General Court decided not to join the two cases at that stage of the procedure.

13 By decision of the President of the General Court, the present case was assigned to a new Judge-Rapporteur sitting in the Seventh Chamber.

14 By documents lodged at the Court Registry on 10 June 2016, the applicant submitted further observations regarding the plea of inadmissibility and asked that that objection be joined to the substance of the case. The President of the Seventh Chamber of the General Court decided not to add those documents to the case file.

15 On a proposal from the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure requested the applicant to lodge a document and put written questions to the parties. The parties replied within the prescribed period.

16 The parties presented oral argument and replied to the oral questions of the Court at the hearing on 24 November 2016.

Law

Preliminary observations

17 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.

18 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 annulment (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 20 September 2016, Mallis and Others v Commission and ECB, C-105/15 P to C109/15 P, EU:C:2016:702, paragraph 51 and the case-law cited).

19 In the present case, it is common ground, on the one hand, that the contested decision does not constitute a regulatory act not entailing implementing measures and, on the other, that the Commission gave notification of the decision to the Republic of Poland, as a result of which the applicant may not be considered to be the addressee of that decision within the meaning of the fourth paragraph of Article 263 TFEU.

20 In those circumstances, it is necessary to ascertain whether the applicant is entitled to bring an action for annulment of that decision on the ground that it is directly and individually concerned by it.

Whether the applicant is directly concerned

21 In the plea of inadmissibility, the Commission submits in particular that the applicant is not directly concerned by the contested decision. It submits essentially that the Member State concerned is the sole addressee of a decision granting, or refusing, as in the present case, a financial contribution from the ERDF to a major project and that that decision does not...