Reino de los Países Bajos contra Comisión de las Comunidades Europeas.

• Jurisdiction: European Union
• Celex Number: 61995CC0308
• ECLI: ECLI:EU:C:1999:89
• Date: 25 February 1999
• Docket Number: C-84/96
• Procedure Type: Recours en annulation - irrecevable
• Court: Court of Justice (European Union)

Important legal notice

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61995C0308

Joined opinion of Mr Advocate General La Pergola delivered on 25 February 1999. - Kingdom of the Netherlands v Commission of the European Communities. - European Regional Development Fund - Projects co-financed by the ERDF - Closure decision. - Case C-308/95. - Kingdom of the Netherlands v Commission of the European Communities. - European Regional Development Fund - Automatic cancellation of payment obligations. - Case C-84/96.

European Court reports 1999 Page I-06513

Opinion of the Advocate-General

I - Subject-matter of the actions

1 By application lodged on 27 September 1995, the Kingdom of the Netherlands brought an action (`the first action') under the first paragraph of Article 173 of the EC Treaty seeking (i) annulment of the Commission's decision dated 28 July 1995, adopted in the form of a letter from the Commissioner responsible for regional policy (the `Commissioner'), concerning the closure of eight projects in respect of which the European Regional Development Fund had prior to 1989 granted financial assistance (1) (the `letter of 28 July 1995'), and (ii) an order for costs against the Commission. By a separate document lodged at the Court Registry on 23 October 1995 the Commission raised an objection to the admissibility of the first action under Article 91(1) of the Rules of Procedure. On 23 September 1997 the Court decided to reserve its decision on admissibility until it had examined the substance of the case.

2 By application lodged at the Court Registry on 19 March 1996 the Kingdom of the Netherlands brought a further action (the `second action') seeking (i) annulment of the debit note of 15 January 1996 and of the two Commission decisions dated 16 February 1996, adopted in the form of letters from the Commission's administrative services, concerning the closure of two of the eight projects listed in the letter of 28 July 1995 (2) (the `letters of 16 February 1996') and (ii) an order for costs against the Commission. (3)

3 Both actions raise problems which are essentially analogous and, therefore, connected. The grounds of appeal raised by the applicant Member State in each case are also analogous. For the sake of simplicity, I am delivering this Opinion on both cases. Nevertheless, the solutions I am proposing will differ, as I shall explain below, to take account of the fact that the Commission raised an objection of inadmissibility only in regard to the first application.

II - Legislative and factual background

4 Under the reform of the Structural Funds introduced in 1993, (4) the Council enacted transitional provisions in order to remedy, with effect from 3 August 1993 and in regard to projects in respect of which the decision to grant Community aid was taken prior to 1 January 1989, (5) the problem of so-called `dormant projects'. In the past these projects have been the subject of much criticism by the Court of Auditors and the European Parliament. In bureaucratic terms `dormant projects' are those in which a long period elapses between the entry of the relevant budgetary commitment in the Community budget and definitive closure of the project which occurs on payment of the final balance, after substantive completion of the action undertaken, subject to the financial audit by the Member State concerned having a positive outcome. (6) In the case of `dormant' projects which continue to affect the Community budget through successive financial years subsequent to the year in which the budgetary commitment was made, difficulties may be encountered, at the time when closure is decided upon, in locating the resources needed for final payment. Plainly that is an infringement of the fundamental principle of the sound financial management of the Community budget. (7) Article 15 of Regulation No 2052/88, as replaced under Article 1 of Regulation No 2081/93 (cited above at footnote 4), provides as follows:

`1. This Regulation shall not affect multi-annual operations, including the adjustment of Community support frameworks and forms of assistance, approved by the Council or by the Commission on the basis of the existing rules governing the Structural Funds applying before the entry into force of this Regulation.

2. Applications for assistance from the Structural Funds towards operations which are submitted under the provisions applying before the entry into force of this Regulation shall be considered and approved by the Commission on the basis of those provisions.

3. The provisions referred to in Article 3(4) and (5) [those which regulate specifically the action of each Structural Fund and those which are necessary with a view to the coordination between, on the one hand, the interventions of the various Structural Funds and, on the other hand, between the intervention of those Funds, the EIB and the other existing financial instruments] shall lay down specific transitional provisions relating to the implementation of this Article, including provisions to ensure that aid to Member States is not interrupted pending the establishment of the plans and operational programmes in accordance with the new system and that the grant of assistance for projects granted assistance before 1 January 1989 shall be finally concluded no later than 30 September 1995.'

Effect was given to Article 15(3) aforementioned of Regulation No 2052/88 (`Article 15(3)'), specifically as regards the ERDF projects, by means of Article 12 of Regulation No 4254/88, as replaced under Article 1 of aforementioned Regulation No 2083/93 (`Article 12'). That provision is as follows: `Those portions of the sums committed for the granting of assistance in respect of projects decided on by the Commission before 1 January 1989 under the ERDF which have not been the subject of a request for final payment to the Commission by 31 March 1995 shall be automatically released by the Commission by 30 September 1995 at the latest, without prejudice to those projects which are subject to suspension for judicial reasons.'

5 By a letter dated 23 February 1995 Mr García Lombardero, head of unit in DG XVI of the Commission (Regional Policy and Cohesion), informed the Netherlands Permanent Representation with the European Union that there was a balance outstanding in respect of budgetary commitments on 18 projects co-financed by the ERDF prior to 1 January 1989, and also drew the attention of the Netherlands authorities to Article 12. Mr García Lombardero is the official authorised by the Commission, in accordance with the rules on delegation in financial matters, to pay ERDF assistance and to effect the credit appropriations in that connection. By a letter dated 21 March 1995 the Netherlands Ministry of Economic Affairs (the `Ministry') replied that they would be submitting a final statement on ten projects by 30 September 1995. With regard to the other projects it said that, for various reasons, it was not possible for the time being to submit any such statement.

6 By letter dated 7 April 1995 Mr García Lombardero informed the Netherlands Ministry of Economic Affairs that, since it was not possible to alter the 31 March 1995 date mentioned in Article 12 of Regulation No 4254/88 for the submission of requests for final payment, files pending would be closed on the basis of documents reaching the Commission before 1 April 1995.

7 By a letter to the Ministry dated 28 April 1995 (amended by facsimile dated 4 May 1995) Mr García Lombardero listed eight projects in respect of which the amounts of ERDF assistance paid would have to be reimbursed. (8) For its part the Netherlands set out its position, in particular as regards the interpretation of Article 12, at the same time furnishing additional information concerning certain of the projects in question in letters dated 19 May and 7, 11, 19 and 20 July 1995 and was able to put its point of view at two meetings, the first of which was held between the State Secretary for Economic Affairs and the Commissioner, Dr Wulf-Mathies. On 1 June 1995 the Netherlands authorities lodged with the Commission requests for final payment in respect of five projects, (9) on 27 July 1995 in respect of two projects and on 14 August 1995 in respect of the other one. Debit notes concerning five of those projects, (10) together with a request to pay the amounts indicated by the Commission by 31 August 1995, were subsequently issued to the Netherlands authorities which received them on 29 June 1995. (11)

8 In the letter of 28 July 1995 the Commissioner informed the State Secretary for Economic Affairs that she had examined afresh the problem set out in earlier correspondence and had also taken into account the additional information furnished by the Netherlands authorities. Nevertheless, the Commissioner was compelled to conclude: `In all cases (...) I am obliged to point out to you that a fresh examination by myself confirms that these projects must in fact be closed on the basis of the most recent requests for payment in the Commission's possession on 31 March 1995. The Commission is not authorised to close projects on the basis of requests for payment received after that date' (my translation). The Commissioner also stated that four of the projects, which were either subject to suspension for judicial reasons or in respect of which the Commission had already, before entry into force of Article 12, granted an extension of time expiring after 31 March 1995, could be given an extension under the terms of that provision. (12)

9 In regard to the eight projects in respect of which the request made by the Netherlands authorities for an extension of time-limits was refused (see footnote 1 above), the Commission declined to pay the full amount of the final balance requested (in two cases) or directly claimed reimbursement of the advances paid earlier (in five cases, see above footnote 10). Only project no...