Sviluppo Italia Basilicata SpA v European Commission.

• Jurisdiction: European Union
• Celex Number: 62008CC0414
• ECLI: ECLI:EU:C:2009:677
• Court: Court of Justice (European Union)
• Date: 29 October 2009
• Docket Number: C-414/08
• Procedure Type: Recurso por responsabilidad

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 29 October 2009 ¹(1)

Case C‑414/08 P

Sviluppo Italia Basilicata SpA

v

Commission of the European Communities

(Appeal – European Regional Development Fund (ERDF) – Overall allocation for the purpose of implementing measures to support small and medium-sized enterprises (SMEs) operating in the Basilicata Region – Regulation (EEC) No 4253/88 – Article 24 – Reduction of the financial assistance originally granted by the ERDF – The Commission’s discretion – Regulation (EEC) No 4253/88 – Articles 25 and 26 – Monitoring and assessment obligations)

Table of contents

I – Legal context

A – Basic Community regulations

B – The Commission decisions setting out the rules applicable to the Community assistance at issue

II – Background to the dispute

A – Measures relating to the allocation of the global grant to the Basilicata Region

B – How the VCF was formed and brought into operation

III – The judgment under appeal

IV – Procedure before the Court of Justice and forms of order sought by the parties

V – The Commission’s arguments concerning the inadmissibility of the action before the Court of First Instance

VI – The appeal

A – The eight grounds of appeal relating to the rejection of the application for annulment

1. The first ground of appeal, alleging distortion of the contested decision and distortion of the action brought by the appellant

a) Arguments of the parties

b) Legal appraisal

i) The complaint alleging distortion of the contested decision

ii) The complaint alleging distortion of the meaning and scope of the action at first instance

iii) Interim conclusion

2. The second ground of appeal, alleging misinterpretation of the provisions of Datasheet No 19

a) The first part (the complaints relating to paragraph 52 of the judgment under appeal)

i) Arguments of the parties

ii) Legal appraisal

– The complaint alleging substitution of grounds

– The complaint alleging distorted interpretation

– The complaint alleging retroactive application of Regulation No 1685/2000

– The complaint alleging a contradiction between the interpretation of the Court of First Instance and the Commission’s practice

– Interim conclusion

b) The second part (the complaint relating to paragraph 53 of the judgment under appeal)

c) The third part (the complaints relating to paragraph 55 of the judgment under appeal)

i) Arguments of the parties

ii) Legal appraisal

d) The fourth part (the complaints relating to paragraphs 57 and 58 of the judgment under appeal)

i) Arguments of the parties

ii) Legal appraisal

– The fourth part is ineffective

– The complaint alleging non-compliance with the provision which requires the financing of a minimum of 10 companies

– The complaint alleging contradictory reasoning

e) The fifth part (the complaints relating to paragraph 48 of the judgment under appeal)

i) Arguments of the parties

ii) Legal appraisal

f) Interim conclusion

3. The third ground of appeal, alleging misinterpretation of the condition as to use

a) Arguments of the parties

b) Legal appraisal

4. The fourth and fifth grounds of appeal.

a) The fourth ground of appeal, alleging misinterpretation and consequent non-application of the principles laid down by the Court of Justice in the judgment in Mediocurso v Commission

i) Arguments of the parties

ii) Legal appraisal

– The complaint alleging failure to have regard to the relationship between the reduction procedure and the monitoring and assessment obligations

– The application of procedural rules not expressly laid down by the Community legislature

– The complaint relating to the obligation to plead the need for respect for the rights of the defence

– The complaint alleging infringement of the principle of the rights of the defence

– Interim conclusion

b) The fifth ground of appeal, alleging infringement of Articles 25 and 26 of Regulation No 4253/88 relating to the Commission’s supervision and monitoring obligations

i) Arguments of the parties

ii) Legal appraisal

5. The sixth and seventh grounds of appeal

a) The sixth ground of appeal, alleging infringement of the principles of legitimate expectations and legal certainty

b) The seventh ground of appeal, alleging distortion of the clear sense of the evidence and infringement of the general principles relating to the burden of proof

i) Arguments of the parties

ii) Legal appraisal

– The seventh ground of appeal is ineffective

– The first complaint, relating to the fact that the appellant provided documents relating to the decisions of the Monitoring Committee

– The second complaint, alleging that the Court of First Instance failed to base its decision on established facts

– The third complaint, alleging lack of measures of inquiry

– The fourth complaint, relating to documents provided by the appellant

– The fifth complaint, alleging failure to take account of the payments made by the Commission

– The sixth complaint, alleging failure to state reasons

– Interim conclusion

6. The eighth ground of appeal, alleging infringement of the Community case-law relating to the application of the principle of proportionality in cases in which Community assistance is reduced

a) Arguments of the parties

b) Legal appraisal

i) The Commission’s discretion under Article 24 of Regulation No 4253/88

ii) The complaint relating to absence of fraud

iii) Whether account should be taken of any failure on the part of the Commission to comply with its monitoring and assessment obligations

iv) Interim conclusion

7. Conclusion

B – The two grounds relating to the claim for damages

1. The ninth ground of appeal

a) Arguments of the parties

b) Legal appraisal

2. The 10th ground of appeal

a) Arguments of the parties

b) Legal appraisal

i) The existence of liability in respect of lawful acts.

ii) The complaints relating to the unusual nature of the damage

iii) The complaint relating to the special nature of the damage

C – Summary of the legal assessment

VII – Costs

VIII – Conclusion

1. By this appeal, Sviluppo Italia Basilicata SpA (‘the appellant’) seeks to have set aside the judgment of the Court of First Instance of the European Communities of 8 July 2008 in Sviluppo Italia Basilicata v Commission (2) (‘the judgment under appeal’). In that judgment, the Court of First Instance dismissed the appellant’s application seeking annulment of Commission Decision C(2006) 1706 of 20 April 2006 reducing the financial assistance from the European Regional Development Fund in favour of an overall allocation for the purposes of implementing measures to support small and medium-sized enterprises operating in the Basilicata Region of Italy (‘the contested decision’), and damages for the harm caused to the appellant by that decision.

I – Legal context

2. Article 158 EC provides that the Community is to aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions, in order to promote the overall harmonious development of the Community. In accordance with Articles 159 EC and 160 EC, the Community is to support the achievement of these objectives by the action it takes through the Structural Funds, in particular the European Regional Development Fund (ERDF), which is intended to help redress the main regional imbalances.

A –Basic Community regulations

3. Article 1 of 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, (3) as amended by Council Regulation (EEC) No 2081/93 of 20 July 1993, (4) provides that, in order to support the achievement of the general objectives set out in Articles 158 EC and 160 EC, the Structural Funds are to contribute to the attainment of five priority objectives. Of these, Objective 1 consists in ‘promoting the development and structural adjustment of regions whose development is lagging behind’. According to the annex to that regulation, Basilicata is one of the regions concerned by that objective.

4.Article 5 of Regulation No 2052/88 lists the possible forms in which financial assistance may be provided under the Structural Funds. Among these, Article 5(2)(c) mentions the possibility of assistance in the form of a ‘global grant’, as a general rule managed by an intermediary designated by the Member State in agreement with the Commission of the European Communities and allocated by the intermediary in the form of individual grants to final beneficiaries.

5. The relevant rules of procedure governing assistance are laid down by Council Regulation (EEC) No 4253/88 of 19 December 1988 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, (5) as amended by Council Regulation (EEC) No 2082/93 of 20 July 1993, (6) and by Council Regulation (EEC) No 4254/88 of 19 December 1988 laying down provisions for implementing Regulation No 2052/88 as regards the European Regional Development Fund,(7) as amended by Council Regulation (EEC) No 2083/93 of 20 July 1993. (8)

6.Article 6 of Regulation No 4254/88 provides that the procedures for the use of global grants are to be the subject of an agreement concluded, in agreement with the Member State concerned, between the Commission and the intermediary; the agreement must detail, in particular, the types of measure to be carried out, the criteria for choosing beneficiaries, the conditions and rates of ERDF assistance and the arrangements for monitoring use of the global grants.

7.Article 24 of Regulation No 4253/88 provides, under the title ‘Reduction, suspension and...