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).

• Jurisdiction: European Union
• Celex Number: 62007CJ0445
• ECLI: ECLI:EU:C:2009:529
• Court: Court of Justice (European Union)
• Docket Number: C-455/07,C-445/07
• Date: 10 September 2009
• Procedure Type: Recurso de anulación

Joined Cases C-445/07 P and C-455/07 P

Commission of the European Communities

v

Ente per le Ville Vesuviane

and

Ente per le Ville Vesuviane

v

Commission of the European Communities

(Appeal – European Regional Development Fund (ERDF) – Development of infrastructure for the expansion of tourism in Regione Campania (Italy) – Closure of Community financial assistance – Action for annulment – Admissibility – Local or regional entity – Measures of direct and individual concern to that entity)

Summary of the Judgment

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Art. 230, fourth para., EC)

2. European Communities – Judicial review of the legality of the acts of the institutions – Need for natural or legal persons to have recourse to a reference for a preliminary ruling on validity

(Arts 10 EC, 230, fourth para., EC and 234 EC)

1. 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. 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.

With regard to the first criterion, the designation of a regional or local entity in a decision to grant Community financial assistance as the authority responsible for the implementation of a European Regional Development Fund project does not imply that that entity is itself entitled to the assistance. 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. The mere fact that a consortium that brings together various national public entities, including the Member State, and with which the Commission is not linked in any way was designated by name as beneficiary of the Community financial assistance in the decision to grant does not imply that it was itself entitled to the financial assistance.

With regard to the second criterion for direct concern, the very fact that the national authorities stated their intention to recover the sums wrongly received by the consortium concerned is, in the absence of obligations in that regard pursuant to Community law, an expression of an autonomous will on their part. It follows that the fact that, in a letter sent to the Commission, the national authorities expressed their intention of recovering from that consortium 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. It is not possible solely from the legally non‑binding pronouncement by the national authorities of their intention to recover the assistance from such a consortium to arrive at the conclusion that it is directly concerned, since, amongst other things, it cannot be ruled out that special circumstances might lead the Member State, as one of the consortium’s shareholders, to forbear to claim the repayment from it.

(see paras 42, 45, 47-49, 54-57, 60)

2. Whilst individuals are entitled to effective judicial protection of the rights they derive from the Community legal order, invoking the right to such protection cannot call into question the conditions laid down in Article 230 EC. 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 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 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 paras 65-66)

JUDGMENT OF THE COURT (First Chamber)

10 September 2009 (*)

(Appeal – European Regional Development Fund (ERDF) – Development of infrastructure for the expansion of tourism in Regione Campania (Italy) – Closure of Community financial assistance – Actions for annulment – Admissibility – Local or regional entity – Measures of direct and individual concern to that entity)

In Joined Cases C‑445/07 P and C‑455/07 P,

APPEALS under Article 56 of the Statute of the Court of Justice, brought on 28 September 2007 and 5 October 2007,

Commission of the European Communities, represented by L. Flynn, acting as Agent, assisted by A. Dal Ferro, avvocato, with an address for service in Luxembourg,

appellant in Case C-445/07 P,

the other party to the proceedings being:

Ente per le Ville Vesuviane, established in Naples (Italy), represented by E. Soprano, avvocato,

defendant at first instance,

and

Ente per le Ville Vesuviane, established in Naples (Italy), represented by E. Soprano, avvocato,

appellant in Case C‑455/07 P,

the other party to the proceedings being:

Commission of the European Communities, represented by L. Flynn, acting as Agent, assisted by A. Dal Ferro, avvocato, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, M. Ilešič, A. Tizzano, A. Borg Barthet and J.‑J. Kasel (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

after hearing the Opinion of the Advocate General at the sitting on 12 February 2009,

gives the following

Judgment

1 By its appeal, the Commission of the European Communities asks the Court of Justice to set aside the judgment of the Court of First Instance of the European Communities of 18 July 2007 in Case T‑189/02 Ente per le Ville Vesuviane v Commission (‘the judgment under appeal’), by which it rejected the plea of inadmissibility raised by the Commission.

2 By its appeal, Ente per le Ville Vesuviane (‘Ente’) asks the Court of Justice to set aside the judgment under appeal by which the Court of First Instance dismissed its action for the annulment of Commission Decision D (2002) 810111 of 13 March 2002 on the closure of the European Regional Development Fund (ERDF) financial assistance in the form of investment in infrastructure in Campania (Italy) relating to an integrated scheme for the development of three Vesuvian villas for the purposes of tourism (‘the contested decision’).

Legal context

3 The ERDF was established by Regulation (EEC) No 724/75 of the Council of 18 March 1975 (OJ 1975 L 73, p. 1 and corrigendum OJ 1975 110, p. 44), several times amended and then replaced, as from 1 January 1985, by Council Regulation (EEC) No 1787/84 of 19 June 1984 on the European Regional Development Fund (OJ 1984 L 169, p. 1). In 1988, that body of rules relating to the Structural Funds was reformed by Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 185, p. 9).

4 On 19 December 1988, the Council adopted Regulation (EEC) No 4254/88 laying down provisions for implementing Regulation No 2052/88 as regards the European Regional Development Fund (OJ 1988 L 374, p. 15). Regulation No 4254/88 replaced Regulation No 1787/84. It was amended by Council Regulation (EEC) No 2083/93 of 20 July 1993 (OJ 1993 L 193, p. 34).

5 Article 12 of Regulation No 4254/88, headed ‘Transitional provisions’ provides:

‘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.’

Facts

6 The facts which gave rise to the dispute are summarised as follows in paragraphs 4 to 16 of the judgment under appeal:

‘4. Ente is a consortium comprising the Italian State, the Region of Campania, the Province of Naples and a number of municipalities. It has legal personality under public law. It was set up by Italian Law No 578 of 29 July 1971 to protect and enhance an architectural complex consisting of Vesuvian villas, built in the 18th century, and their dependencies (parks, gardens and related buildings).

5 According to information provided by Ente and not contested by the Commission, in 1986 the Italian State, at Ente’s request, applied to the Commission for the grant of financial assistance from the ERDF with a view to investing in infrastructure in order to create an...