Conserve Italia Soc. Coop. arl v Commission of the European Communities.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Macken
• ECLI: ECLI:EU:C:2002:45
• Docket Number: C-500/99
• Date: 24 January 2002
• Procedure Type: Recurso de anulación

Avis juridique important

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61999J0500

Judgment of the Court (Sixth Chamber) of 24 January 2002. - Conserve Italia Soc. Coop. arl v Commission of the European Communities. - Appeal - Agriculture - EAGGF - Discontinuance of financial aid - Regulation (EEC) No 355/77 - Regulation (EEC) No 4253/88 - Principle of proportionality. - Case C-500/99 P.

European Court reports 2002 Page I-00867

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Appeals - Grounds - Incorrect assessment of the facts - Inadmissible - Review by the Court of Justice of assessment of evidence - Excluded unless the sense of evidence has been distorted

(Art. 225(1) EC; EC Statute of the Court of Justice, Art. 51)

2. Economic and social cohesion - Structural assistance - Community funding for national projects - Assessment of eligible expenses - Commission's measure of discretion

(Council Regulation No 4253/88, Art. 15(2), first and second subparas)

3. Acts of the institutions - Withdrawal - Unlawful acts - Conditions - Observance of the principles of legal certainty and the protection of legitimate expectations

Summary

1. Under Article 225(1) EC and Article 51 of the EC Statute of the Court of Justice, an appeal may lie only on grounds relating to the infringement of rules of law. The Court of Justice does not have jurisdiction to find the facts. Nor, in principle, does it have jurisdiction to examine the evidence which the Court of First Instance accepts as establishing those facts. It is for the Court of First Instance alone to assess the weight that should be attached to the evidence adduced before it. That assessment does not constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice.

( see para. 59 )

2. It is clear from the second subparagraph of Article 15(2) of Regulation No 4253/88, laying down provisions for implementing Regulation No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments that that provision is intended to confer on the Commission a measure of discretion. Furthermore, that provision constitutes an exception to the rule laid down in the first subparagraph of Article 15(2) of Regulation No 4253/88, according to which expenditure may not be considered eligible for assistance if incurred before the date on which the corresponding application reaches the Commission. The necessarily restrictive interpretation of such an exception means that the word may in the second subparagraph of Article 15(2) of the regulation cannot be construed as granting more than a mere power to the Commission.

( see para. 68 )

3. The administration may withdraw with retroactive effect an advantageous administrative act vitiated by illegality, provided that it does not infringe either the principle of legal certainty or that of the protection of legitimate expectations. That possibility, which arises where the beneficiary of the act did not contribute to its illegality, applies a fortiori where, as in this case, the illegality is attributable to him.

( see para. 90 )

Parties

In Case C-500/99 P,

Conserve Italia Soc. Coop. arl, formerly Massalombarda Colombani SpA, established in San Lazzaro di Savena (Italy), represented by M. Averani, A. Pisaneschi, P. de Caterini and S. Zunarelli, avvocati, with an address for service in Luxembourg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 12 October 1999 in Case T-216/96 Conserve Italia v Commission [1999] ECR II-3139, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by F. Ruggeri Laderchi, acting as Agent, assisted by M. Moretto, avvocato, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Sixth Chamber),

composed of: F. Macken (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, V. Skouris and J.N. Cunha Rodrigues, Judges,

Advocate General: S. Alber,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 30 May 2001, at which Conserve Italia Soc. Coop. arl was represented by P. Manzini and A. Masutti, avvocati, and the Commission by L. Visaggio, acting as Agent, assisted by M. Moretto,

after hearing the Opinion of the Advocate General at the sitting on 12 July 2001,

gives the following

Judgment

Grounds

1 By application lodged at the Registry of the Court on 22 December 1999, Conserve Italia Soc. Coop. arl (hereinafter Conserve Italia) brought an appeal under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance in Case T-216/96 Conserve Italia v Commission [1999] ECR II-3139 (hereinafter the contested judgment). By that judgment, the Court of First Instance dismissed the action for annulment brought by Conserve Italia against Decision C (96) 2760 of the Commission of 3 October 1996 (hereinafter the contested decision), discontinuing financial aid from the European Agricultural Guidance and Guarantee Fund (EAGGF) awarded to Massalombarda Colombani SpA by Decision C (90) 950/356 of the Commission of 29 June 1990 (hereinafter the decision to grant aid) and, in so far as necessary, any measure of the Commission related to that decision, in particular working document VI/1216/86-IT (hereinafter the working document) fixing the maximum amount of aid which may be granted from the Guidance Section of the EAGGF under Council Regulation (EEC) No 355/77 of 15 February 1977 on common measures to improve the conditions under which agricultural products are processed and marketed (OJ 1977 L 51, p. 1).

Legal background to the dispute

Regulation No 355/77

2 Articles 1(3) and 2 of Regulation No 355/77 provide that the Commission may grant aid for common measures by financing, through the Guidance Section of the EAGGF, projects which are designed to develop or rationalise the treatment, processing or marketing of agricultural products.

3 Article 19(2) of that regulation states:

Throughout the period during which aid is granted from the [EAGGF], the authority or agency appointed for that purpose by the Member State concerned shall, at the request of the Commission, forward to it all supporting documents which are of relevance in proving that the financial or other conditions laid down for each project have been fulfilled ...

... the Commission may decide, ... to suspend, reduce or discontinue aid from the [EAGGF]:

- if the project has not been carried out as planned, or

- if certain of the conditions laid down have not been fulfilled ...

- ...

...

The Commission shall recover any sums the payment of which was not or is no longer justified.

Regulation (EEC) No 2515/85

4 Commission Regulation (EEC) No 2515/85 of 23 July 1985 on applications for aid from the Guidance Section of the EAGGF for projects to improve the conditions under which agricultural and fish products are processed and marketed (OJ 1985 L 243, p. 1), specifies in the annexes thereto the information and documents which applications for aid made under Regulation No 355/77 must contain.

5 Those annexes include, firstly, models of forms to be completed by the applicants for aid and, secondly, explanatory notes to assist applicants in submitting their applications.

6 The Explanatory notes for each heading in Annex A to Regulation No 2515/85 state, in relation to Point 5.3 of the form to be filled in by applicants for aid, that projects begun before the application reaches the Commission cannot qualify for aid. Under that point of the form, applicants for aid must undertake not to start work on the project before receipt of application for aid by the EAGGF Guidance Section.

The working document

7 The working document was drawn up by the EAGGF in 1986. Paragraph 5 of point B.1 excludes completely from aid operations or work which are started before the application is submitted. However, paragraph 5 provides for exceptions to that exclusion in respect of:

...

(b) the purchase of machines, equipment and building materials, including metal skeletons and prefabricated components (order and supply), provided that assembly, installation, incorporation and work on site, in so far as building materials are concerned, have not taken place before the application for aid was submitted;

(c) costs relating to the purchase of equipment and machines subjected to tests before submission of the project;

....

8 Paragraph 5 of point B.1 of the working document specifies that the operations referred to at (b) are eligible, but the measures referred to at (c) and (d) are not although they will not render the project inadmissible.

9 Under paragraph 12 of point B.1 of the working document, the following are also ineligible for aid: charges for the hire of equipment and investments financed by leasing. For example: hire charges for the use of Tetra Pak machines; projects partially or completely financed by leasing. However, such investments may be eligible where the hire-purchase agreement ... stipulates that the beneficiary will become the owner of the equipment hired or of the measure financed during the five years following the date on which the aid was granted. That period will be reduced to four years in respect of projects financed as of 1985.

Regulation (EEC) No 4253/88

10 On 24 June 1988 the Council adopted Regulation (EEC) No 2052/88 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).

11 On 19 December 1988 the Council adopted, on the basis of that...