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 84.07.03.001 was the subject of a closure decision with a nil final balance. (13)
10 As far as projects nos 80.07.03.002 and 84.07.03.004 are concerned, the Netherlands authorities on 1 June 1995 submitted to the Commission the requests for payment of the final balance (see paragraphs 2 and 7 above). On 15 January 1996 the Commission sent to the Netherlands Ministry of Economic Affairs a debit note in the amount of NLG 1 364 180 in respect of ERDF project no 84.07.03.004. In his letters of 16 February 1996 Mr García Lombardero, referring to his earlier letters of 23 February and 7 April 1995 in which he made clear the Commission's intention to close ERDF projects nos 80.07.03.002 and 84.07.03.004 on the basis of information available to it prior to 1 April 1995, confirmed the amount of the reimbursement requested by the Commission in respect of project no 84.07.03.004 and proceeded to pay the sum of NLG 551 845, being the amount of the final payment due from the Commission in respect of project no 80.07.03.002. The letters of 16 February 1996 also illustrate the method of calculation used in each case by the Commission.
III - Legal analysis
Admissibility of the first action (Case C-308/95)
11 As I have already stated (paragraph 1), the Commission has raised an objection of inadmissibility against the action brought by the Netherlands for annulment of the letter of 28 July 1995. The Commission states in the ancillary application that the document in question, which is limited to the eight projects at issue, is merely confirmatory of the letter of 7 April 1995 from Mr García Lombardero. That letter was not challenged by the applicant within the period provided for in Article 173 of the Treaty. The Commission relies on the Court's case-law, (14) to support its argument that to declare the action in Case C-308/95 admissible would be tantamount to allowing the Netherlands to circumvent the time-limit for challenging the initial decision. Moreover, annulment of the letter of 28 July 1995 would be of no interest to the applicant State. Notwithstanding the judgment of the Court, the initial decision would in fact continue to subsist (in addition to the individual decisions adopted under it). Nor is the confirmatory nature of the letter of 28 July 1995 altered by the fact that the contested act, in which the Commissioner replied to a letter from the Secretary of State, was signed by a person other than the person issuing the initial decision. Finally, the Commission submits that, contrary to the holding by the Court of First Instance in its recent judgment in IPK-München, (15) a letter, such as that challenged in these proceedings by the Netherlands, whose author writes to confirm the contents of an earlier letter, even if after a re-examination of the situation of the addressee of the previous act, is not essentially different from a confirmatory letter tout court: the formulation of the document in one way or another could in fact be dictated by mere considerations of courtesy, without there being any implication that the situation has in fact been the subject of a fresh appraisal.
12 Arguments of this intent are taken up and developed by the Commission in the reply and rejoinder. According to the Commission, the inadmissibility of the first action results from the fact that the letter of 28 July 1995 does not in any event constitute an actionable decision for the purpose of annulment proceedings, rather than the merely confirmatory nature of the letter of 28 July 1995 (ancillary argument). In fact, it is submitted, under the principle of legal certainty such actions may be brought only in respect of acts expressly and specifically provided for in the Community legal order as regards the institution competent to adopt them, the procedure for their adoption, the conditions concerning validity and legal consequences. In the context, the Commission adds, of the administrative steps which it takes in order to implement the budget only orders for payment of expenses and debit notes issued may form the subject-matter of the proceedings provided for in Article 173 of the Treaty. Far from constituting the mere implementation of previous decisions, individual measures of that kind are said to entail definitive legal effects for the persons concerned. However, the act challenged in Case C-308/95 forms part of the overall preparatory activity by the Commission in the area concerned. Not only, the Commission contends, is there no legal basis whatsoever for classifying such an act as a decision legitimately adopted by it, but the act itself produces, as far as the Netherlands are concerned, no legal effect beyond that which directly stems from Article 12 because its sole purport is to confirm the Commission's interpretation of that provision. On that reasoning, between Article 12 and the decisions closing the projects, which give concrete effect to that provision in individual cases, there could have been no supervening decisions by the Commission. Furthermore, the Commission goes on to add, the letter of 28 July 1995 dates from the period between notification of the debit notes for five projects and adoption of the closure decisions for the three remaining projects (see paragraphs 7, 9 and 10 above). It is therefore legitimate to inquire as to what possible legal status could be attached to a `decision' adopted partly subsequently and partly prior to the (actual) decisions formally provided for by Community law.
13 Yet the arguments advanced by the Commission, initially in the ancillary claim and then in the subsequent defence pleadings, in support of its claim that the action in Case C-308/95 is inadmissible are hard to reconcile. At first the Commission identified the actionable decision as being the letter of 7 April 1995 from Mr García Lombardero to the Ministry and, then, as the individual closure decisions concerning the eight projects at issue. That being said, I remain of the opinion that the Commission correctly claimed that the first action is inadmissible. I shall now go on to explain my reasons for thinking thus.
14 The Court has held that, in accordance with the objective laid down by Article 164 of the Treaty, an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. (16) In ruling on the admissibility of an action under Article 173, therefore, the Court pays attention more to the substance than to the formal designation of the contested act. (17) Even a letter sent by the Commission to a person in response to a prior request by that person may be regarded as an actionable decision provided that it is an act having binding legal effects of such a nature as to affect the interests of the applicant by having a significant effect on his legal position. (18)
15 In regard to the present case, the recent judgment in Regione Toscana, which is not dissimilar to the case now before the Court, may shed more light on the criteria to be applied by the Community judicature in examining the nature of an act challenged by means of the judicial remedy provided for under Article 173. (19) In Case T-81/97 the Tuscany Region had brought proceedings before the Court of First Instance for the annulment of two decisions adopted by the Commission in the form of letters, and of the act (never communicated to the applicant) revoking the Community aid already granted for a project under the integrated Mediterranean programmes. In the first letter, which was sent on 21 November 1994 by the director of the EAGGF to the Italian authorities, the Commission referred to Article 10 of Regulation No 4256/88, (20) which is in similar terms, mutatis mutandis, to Article 12 of Regulation (EEC) No 4254/88 (see paragraph 4 above), pointing out that the request for final payment for the project in question ought to have reached it by 31 March 1995. Referring to the Court's case-law, (21) the Court of First Instance chiefly recalled that a written statement of opinion by a Community institution does not constitute a decision against which an action for annulment lies, since it is not capable of producing legal effects and does not seek to produce such effects (paragraph 22). In the circumstances of the case, according to the Court of First Instance, it was the application of the legal provision in question to a given situation which was capable of producing legal effects and not the interpretation of that provision by the Commission in its letter. Nor, moreover, could the letter at issue be deemed to constitute a Commission decision on the request for final payment submitted by the applicant, the latter being subsequent in time by several months to the contested act (see paragraph 16 below). Since it provided nothing more than an interpretation of the aforementioned Article 10, the letter of 21 November 1994 was purely informative and did not in itself alter the legal situation of the addressee (paragraphs 23 to 26). Likewise the Court of First Instance declared inadmissible the claim for annulment of the act under which the Commission automatically revoked the amount in issue. In fact that act did not in fact produce any legal effect as regards the Tuscany Region. It was merely the inescapable consequence of the earlier finding by the Commission that the applicant's right to financial assistance had been revoked (paragraphs 29 and 30).
16 Finally, the Tuscany Region also challenged the letter of 31 January 1997 in which the Commission, in reply to the request for final payment (and to a subsequent reminder) by the applicant, and referring to its note of 21 November 1994, stated that it had received that request on 4 April 1995 and the accounting documents in support only on 29 May 1995. Consequently, it informed the applicant, the amounts of Community assistance had been automatically released on 30 September 1995. Since the second letter, which was the subject of proceedings, deprived the Tuscany Region of the financial assistance initially granted to it owing to non-observance of the time-limit laid down in Article 10, it clearly showed the manner in which the Commission was applying that provision to the applicant's situation. It was therefore actionable under Article 173 (see paragraphs 27 and 28).
17 I concur with that statement of principles by the Court of First Instance which may indeed be adapted to the present case. The letter of 28 July 1995 would be an actionable decision under Article 173 of the Treaty if it constituted the definitive formal application by the Commission of Article 12 to the situation of the Netherlands. In that case, since the letter at issue significantly altered the legal situation of the applicant Member State, the first action would be admissible.
18 It is, it seems to me, beyond doubt that the letter of 28 July 1995, apart from giving the Commission's view on the correct interpretation of Article 12, also informed the Netherlands authorities of the Commission's intention not to pay, at least in regard to five projects, the final balance which had been requested out of time by the beneficiary State. (22) Viewed in this light the act challenged in Case C-308/95 may be assimilated to the Commission's letter of 31 January 1997 at issue in Regione Toscana (see paragraph 16 above). However, in Case T-81/97 the contested letter was the only act giving the Commission's definitive view on the right of the Tuscany region to the Community aid granted for the (only) project at issue. Since there had been no earlier advance payments, and thus no need for reimbursement of amounts unduly paid, the contested act definitively regulated financial relations between the EAGGF and the applicant. Thus, the alteration of the latter's legal situation (loss of entitlement to the financial assistance in question) was due once for all to the Commission's decision as stated in the contested letter. (23)
19 The letter of 28 July 1995 is a different case. That act came into being quite incidentally in the course of the settlement of accounts concerning Netherlands projects co-financed by the ERDF. In the absence of that letter, which, as regards the addressee Member State, was essentially informative (concerning the Commission's interpretation of Article 12), the Netherlands legal situation within that procedure remained unchanged. The letter challenged by the Netherlands authorities was then complemented by the overall calculations and particularised, as regards all the individual projects at issue: (i) by debit notes of June 1995 and January 1996 concerning project nos 84.07.03.003, 84.07.03.004 (see below), 85.07.04.005, 87.07.04.001, 87.07.04.004 and 88.07.04.002 and (ii) by the decisions adopted in the form of letters dated 25 October 1995 and 16 February 1996 concerning project nos 84.07.03.001, 80.07.03.002 and 84.07.03.004 (see paragraphs 7, 9 and 10 above). Thus, it was only on notification to the applicant of those notes that it could be deemed bound to honour those specific financial obligations, as laid down in each of them and by the date stated therein (and in the case of project no 80.07.03.002 as regards the Netherlands' entitlement to receive the final balance). It is true that, as regards implementation of the budget, mere financial implementing decisions (commitments, settlement, payment orders concerning expenditure or collection of claims) which produce legal effects only in the internal sphere of the administration do not, in the Court's view, constitute actionable decisions. (24) However, the opposite is true, in my view, as regards the individual decisions, even if they are adopted in the form of letters or debit notes sent to the national authorities, as in the present case, whereby the Commission makes plain the manner in which it is applying Article 12 to the situation of the applicant State with reference to the individual projects at issue. The decisions addressed to the Netherlands, as I have already observed, sought to produce legal effects as regards the addressee Member State.
20 I am therefore persuaded by the plea of inadmissibility raised by the Commission for the first time in the defence (see paragraph 12 above). Viewed in the more general context of the administrative activities carried out by the Commission with a view to implementing the budget, the letter of 28 July 1995 must be regarded as a merely preparatory act or `intermediate measure' and as such not challengeable under the terms of the IBM decision in which the Court held: `In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, it is clear from the case-law that in principle an act is open to review only if it is a measure definitively laying down the position of the Commission or the Council on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision. It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings not only [were intended to produce mandatory legal effects apt to affect the interests of the person challenging them, significantly altering that person's legal situation], but in addition were themselves the culmination of a special procedure distinct from that intended to permit the Commission or the Council to take a decision on the substance of the case. Furthermore, it must be noted that whilst measures of a purely preparatory character may not themselves be the subject of an application for a declaration that 0they are void, any legal defects therein may be relied upon in an action directed against the definitive act for which they represent a preparatory step'. (25)
21 In my opinion, therefore, the action in Case C-308/95 is to be deemed inadmissible because it was brought out of time (dies a quo: 29 June 1995) as regards five projects and prematurely (that is to say prior to notification of the official closure decisions adopted on 25 October 1995, 15 January and 16 February 1996) as regards the others. (26)
Substance of the second action (Case C-84/96)
22 In light of the foregoing matters, I consider, on the other hand, that there can be no doubts as to the admissibility of the second action which, moreover, is not disputed by the Commission. (27) On the merits the grounds relied on by the Netherlands in Case C-84/96 concern, in the order in which I propose to analyse them: (i) misapplication of Article 12 by the Commission as far as the refusal to extend the 31 March 1995 deadline is concerned; (ii) inadequacy of the statement of reasons underlying the letters of 16 February 1996, and (iii) infringement by the Commission of general principles of Community law (Community solidarity and regional partnership, legitimate expectations and proportionality). In the alternative the applicant pleads (iv) misdescription of the letter of 21 March 1995 from the Ministry as a document not constituting a definitive request for payment under Article 12; (v) failure to consult the Fund committee prior to adoption of the closure decisions concerning the projects at issue and (vi) inaccuracies in the settlement of the accounts relating to project no 84.07.03.004 on account of failure to give consideration to information which was, however, in the Commission's possession prior to 1 April 1995.
(i) Misapplication of Article 12 in so far as the 31 March 1995 deadline was regarded as mandatory and, in the alternative, (ii) defect in reasoning in the letters of 16 February 1996
23 The applicant is principally challenging the misinterpretation by the Commission of Article 12, inasmuch as it regarded the 31 March 1995 deadline for the submission of requests for final payment as mandatory. Yet it may be inferred, the applicant says, from the provisions of Article 15(3) and Article 12 (see paragraph 4 above) that the intention of the Community legislature was to achieve closure by 30 September 1995 at the latest of `dormant projects' still pending. Article 12 is, in its view, to be regarded as a mere administrative consequence of that principle, to which it adds nothing. Moreover, the wording of Article 12 is said to allude to a discretionary power on the part of the Commission also to take into account requests for payment received after the 31 March 1995 deadline. That power is said also to correspond with the power to close projects after 30 September 1995 which the Commission certainly enjoyed, according to its own statements in the defence. To adopt a solution to the contrary would be to permit the Commission arbitrarily to use `two weights and two measures' in relation to the deadlines laid down in Article 12. According to the Netherlands, the 31 March 1995 deadline was therefore merely the deadline by which expenditure eligible under the projects in question for Community financing had to be incurred.
24 By way of alternative the applicant puts forward another argument: if the letters of 16 February 1996 prove to have been drawn up on the basis of the Netherlands interpretation of Article 12, the contested decisions would be contrary to Article 190 of the Treaty because the Commission had failed to explain the grounds on which the 1 June 1995 requests for payment were precluded from consideration on closure of the projects at issue (see footnote 10 above).
25 The plea now under examination is in my view ill-founded. As the Commission has stated, the applicant's arguments fly in the face of both the plain logical, semantic and grammatical meaning of Article 12 and of a systematic and purposive interpretation of that provision. (28) By making it a requirement for requests for final payment to be submitted at least six months before expiry of the deadline laid down for closure of old projects, the Council sought to compel the Member States - successfully in the Commission's view (29) - to comply with their obligations in due time. To that end, failure to observe the deadline for submitting those requests was penalised by the automatic release of the portions of the sums already committed for the granting of assistance. How, then, can it be seriously maintained that the 31 March 1995 deadline is merely of an administrative nature or that the Commission enjoys discretionary powers in this connection (save for its mandatory intervention in regard to the settlement of accounts)? On the other hand, just because Article 12 did not attach any legal consequence to the failure by the Commission to observe the 30 September 1995 deadline, the fact that the Commission adopted closure decisions in regard to the two projects at issue after that date had passed appears to be irrelevant to the question whether the 31 March 1995 deadline could be extended. I am therefore left somewhat perplexed by the interpretative solution advocated by the Netherlands to the effect that requests for final payment arriving after 31 March 1995 could be accepted, provided that they reached the Commission sufficiently in advance of 30 September 1995 to enable it to conclude in due time the administrative checks in regard to each of the projects in question. That view of the matter is inconsistent with the principle of legal certainty which is enshrined as a general principle of the Community legal order. (30) Consequently, it is otiose to engage in a discussion of the alleged inadequacy of the reasoning underlying the letters of 16 February 1996 (see paragraph 25 above).
(iii) Infringement by the Commission of the general principles of solidarity and regional partnership, protection of legitimate expectations and proportionality
26 (a) The applicant maintains that, even if the Commission did act in conformity with Article 12, it none the less contravened the principle of solidarity whose specific manifestation, in the subject-matter now before the Court, is the principle of regional partnership. (31) The allegation concerns the closure of the projects at issue, effected on 31 March and 1 April 1995, on the sole basis of requests for payment in the Commission's possession as at 31 March 1995 and without account being taken of the requests for final payment which were made in the letter of 21 March 1995 from the Ministry (see paragraph 5 above) and reached the Commission on 1 June 1995, that is to say well before expiry of the 30 September 1995 deadline. The error vitiating the contested decisions is, according to the applicant, all the more serious since the expenditure forming the subject-matter of the requests for final payment was all incurred before 31 March 1995 and the delay in submitting those requests was due to the meticulous checks operated by the Netherlands authorities to ensure that the conditions were met for payment of the final balance to the beneficiaries and that the information submitted to the Commission was accurate.
27 (b) According to the Netherlands, then, the letters of 16 February 1996 contravened the general principle of the protection of legitimate expectations. The applicant observes that the Community legislation on structural funds applicable at the time when financial assistance for the projects at issue was granted imposed neither a completion deadline as regards the financial obligations entered into in respect of projects to be undertaken over several successive financial years nor a deadline for the submission of requests for final payment. Under the system then in force, (32) it was the individual decisions granting financial assistance which laid down the periods for completion of projects which, moreover, were usually extended by the Commission (even several times for the same project) at the request of the Member State concerned. Article 15(3) in conjunction with Article 12 therefore significantly altered, with retroactive effect, the rules applicable at the time when financial assistance was granted for projects nos 80.07.03.002 and 84.07.03.004. The Commission was therefore under an obligation, it is alleged, to inform the Member States of the new policy which it was intending to adopt in this area and to specify what would be the financial effects consequent on its interpretation of Article 12. In the absence of any such statement of opinion, the Netherlands authorities were legitimately entitled to expect that final closure of the two projects at issue would take place, as in the past, in a spirit of concentration and solidarity, in view also of the fact that the Commission did not need six months to arrange for settlement of the accounts in question. According to the applicant, the situation of legitimate expectation continued even after it received the letter of 23 February 1995 (see paragraph 5 above) in which the Commission cited the wording of Article 12, a provision said to be anything other than unambiguous, whilst not however pointing out the consequences attendant upon non-observance of the 31 March 1995 deadline. By the same token, the Commission ought to have replied by return of post to the letter of 21 March 1995 which showed that the Ministry believed that it could submit requests for final payment also after 31 March 1995.
28 (c) Finally, the Netherlands rely on the Court's case-law concerning review of the proportionality of sanctions according to which the imposition of penalties such as loss of entitlement to aid may be said to be in conformity with Community law only if the obligations whose contravention is thus penalised are of fundamental importance to the proper functioning of the system of aid under consideration. Under that principle, since all the principal obligations on which entitlement to the grant of financial assistance for the projects at issue are satisfied, non-observance of the deadline laid down for submission of the requests for final payment could not, as a penalty, entail loss of entitlement. That is all the more true since the Commission itself was not in any event in a position to close the two projects definitively by 30 September 1995.
29 Nor, in my view, may this plea be upheld. Infringement of the principles of solidarity and partnership, protection of legitimate expectations and proportionality relied on by the Netherlands Government in fact presupposes that the Commission, as it has pointed out, enjoys a certain margin of discretion in the application of Article 12. However, as I have already had occasion to point out, that is not the case (see paragraph 26). On plain considerations of good sense, because to hold otherwise would be to call in question the whole functioning of the Community, the obligations of sound administration and solidarity with the Member States (including regional partnership), which are incumbent on the Commission, cannot include the obligation to look into the doubts entertained by one or other Member State as to the correct interpretation of recently enacted rules. Finally, it is plain that, where the allegations concerning failure to protect legitimate expectations and the disproportionate nature of the penalty directly concern the substance of Article 12, and the application of that provision made by the Commission, those allegations are inadmissible since the Netherlands had allowed the deadline for bringing annulment proceedings before the Court to expire.
(iv) Misdescription of the letter of 21 March 1995 from the Ministry as a document not constituting a definitive request for payment; (v) failure to consult the Fund committee prior to adoption of the decisions of 16 February 1996 and (vi) inaccuracies in the settlement of the accounts relating to project no 84.07.03.004
30 (iv) Since none of the main pleas raised by the applicant can, in my view, be upheld, I now turn to an examination of those raised in the alternative. The first concerns the Commission's appraisal of the letter of 21 March 1995 from the Ministry. Not only did the Commission not regard that letter as a definitive request for payment but it failed to make known in due time (by 31 March 1995) its own viewpoint to the Netherlands authorities. Consequently, those authorities were, it is contended, unable to regularise the document by completing it with the missing information within an appropriate period or other period to be laid down, if need be, by the Commission. Thus, the Commission is said to have misapplied Article 15(3) and Article 12 and to have infringed the principles of partnership and sound administration. According to the Netherlands, it was to be inferred from the letter of 21 March 1995 that the projects at issue had been completed and that the Netherlands authorities intended to seek payment of the final balance relating to them. Yet the Commission arbitrarily equated the concept of `request for final payment' laid down in Article 12 with that of `final payment claim' formally and substantively provided for in Article 28 of Council Regulation (EEC) No 1787 of 19 June 1984 on the European Regional Development Fund. (33)
31 On this point too I am swayed by the Commission's arguments. Although technically Article 28 of Regulation No 1787/84 (repealed with effect from 1 January 1989) is not applicable to the present case, (34) there can be no doubt that the requests for final payment under Article 12 must essentially contain the same particulars as was prescribed at the time for final-payment claims. Those requests must then, as a minimum requirement, give details, in regard to each project, of the amount of the payment requested, the method of calculation followed and the information relating to each transaction. Since the letter of 21 March 1995 did not give particulars of any of those matters, the Commission cannot be reproached for not treating it as a duly completed request. Moreover, it is simply unthinkable to consider that the Commission was obliged, under the principles of sound administration and solidarity with the Member States, to examine the letter in question, which reached it on an unspecified date but at any rate after expiry of the deadline laid down in Article 12, immediately on receipt and to reply by immediate return of post in order to point out the problems and irregularities discovered. To argue the contrary would be to ignore that in the `hot' month of March 1995 the Commission's services were `inundated' by hundreds of similar communications from the Member States. (35)
32 (v) The applicant goes on to allege that adoption of the decisions of 16 February 1996 ought to have been preceded by consultation of the ERDF Committee, as provided for in Article 32 of Regulation No 1787/84 (see footnote 33 above), not repealed or amended by Article 12, in regard to measures reducing or cancelling aid already granted. Nor may this plea be upheld. The Commission stated, in my view correctly, that the procedure for reducing or cancelling aid under Article 32 which presupposes that the action in receipt of aid was not carried out in the manner provided for or that the conditions laid down in the instruments governing it were not observed, is to be distinguished from the procedure under Article 12 for automatic withdrawal of sums committed for the grant of assistance, the application of which is dependent on a different requirement (failure to submit a request for final payment within the prescribed time-limit). In the context of that procedure consultation of the ERDF committee is not prescribed.
33 (vi) Finally, the Netherlands request the Court to annul the closure decision in regard to project no 84.07.03.004 in which the Commission sought reimbursement of NLG 1 364 180 (and order the Commission to pay the applicant the final balance of NLG 844 500) because the defendant wrongly failed to have regard to the particulars contained in the request for interim payment of 6 April 1994. It was clear from that document that the total amount of public expenditure incurred as at that date which was to form the basis for calculating the portion of ERDF aid in respect of which a request for payment could be made amounted to NLG 22 915 000. However, in a letter dated 21 October 1994 the Commission informed the Ministry that it was unable to accede to the request of 6 April since, on the one hand, the criteria on which the calculations were based were vague and, on the other, the calculation resulted in ERDF aid equal to 33.3% of total expenditure being granted for the project, that is to say more than the rate (30%) provided for in the decision granting the aid. The Ministry, subsequently, cancelled the request of 6 April 1994 in a facsimile letter of 8 November 1994. Instead of submitting a fresh corrected request for interim payment, the Ministry preferred for the sake of simplicity to supply the up-to-date information directly with the request for final payment on 1 June 1995, thus confirming annulment of the 6 April 1994 statement. Accordingly, in settling the accounts relating to project no 84.07.03.004 the Commission had regard solely to the information in its possession on 31 March 1995, and thus to the total amount of public expenditure incurred as at 9 October 1991 (NLG 15 552 734.98) declared by the Netherlands authorities in the request for interim payment submitted by it prior to the request of 6 April 1994. None the less, according to the applicant, the principles of partnership and sound administration required the Commission, once the 31 March 1995 deadline had expired, to make use of the information contained in the interim request of 6 April 1994 and to ignore the withdrawal thereof by the Netherlands authorities. Above all, it was open to the Commission to have obtained the correct criteria for those calculations from the original decision granting aid for the project at issue.
34 That plea too must be rejected. The Netherlands cannot impute to the Commission responsibility for the prejudicial effects of its own negligent conduct. The applicant Government decided, after cancelling its interim request of 6 April 1994, not to submit a fresh duly amended request, reserving its right to communicate in the final request up-to-date information on the total amount of expenditure incurred. However, that request reached the Commission after expiry of the deadline laid down in Article 12. For the view taken by the Netherlands authorities that the Commission ought to have actively sought to remedy their errors and omissions and to correct the inaccurate information supplied by it there is frankly no warrant whatsoever in the relevant legislation or in the Court's case-law on the Commission's obligation to cooperate in a spirit of solidarity with the Member States in accordance with Article 5 of the Treaty.
IV - Conclusion
In light of the foregoing I propose that the Court should:
- Declare the action in Case C-308/95 to be inadmissible,
- Reject the action in Case C-84/96, and
- Order the Netherlands to pay the costs in both proceedings.
(1) - EDRG infrastructure projects nos 80.07.03.002 (Veendam-Musselkanaal), 84.07.03.001 (Rijksweg 7), 84.07.03.003 (S 13 road project), 84.07.03.004 (Weg Veendam), 85.07.04.005 (five projects in Drentse), 87.07.04.001 (Zwart 6 Zuid road project), 87.07.04.004 (Sneek ring road) and 88.07.04.002 (Gelpenberg project).
(2) - Projects nos 80.07.03.002 and 84.07.03.004, mentioned above.
(3) - In the second application the Netherlands Government sought joinder, for the purposes of the written and oral procedures and final judgment, of the two cases on which I am today giving my Opinion on the ground that they are connected
(4) - See, in so far as they are relevant to this Opinion, Council Regulation (EEC) No 2081/93 of 20 July 1993 amending 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 1993 L 193, p. 5, hereinafter `Regulation No 2081/93') and Council Regulation (EEC) No 2083/93 amending Council Regulation (EEC) No 4254/88 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Regional Development Fund (OJ 1993 L 193, p.34, hereinafter `Regulation No 2083/93').
(5) - As regards projects where the decision on Structural Fund assistance was granted after 1 January 1989, Article 20 of Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) 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, which entered into force on 1 January 1989, states as a matter of principle that budgetary commitments made by the Commission are to be valid for a period, depending on the nature of the operations and on the specific conditions for their implementation. See also Article 1 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1), as amended by Article 1(1) of Council Regulation (ECSC, EEC, Euratom) No 2049/88 of 24 June 1988 (OJ 1988 L 185, p. 3) and by Article 1(4) of Council Regulation (ECSC, EEC, Euratom) No 610/90 of 13 March 1990 (OJ 1990 L 70, p. 1).
(6) - According to the Commission, the phenomenon described is attributable, in the case of projects financed by the European Regional Development Fund (`ERDF'), to the very nature of the projects (concerning in particular productive investments or infrastructure projects), to the need for the final beneficiaries to prepare adequate and complete documentation and for the competent national authorities to carry out the requisite financial checks to ensure that the conditions for the grant of Community assistance are met, to the inevitable substantive and administrative delays, as well as to failures by the Member States to keep the Commission informed of progress in implementing the projects.
(7) - See Article 2 of the Financial Regulation (cited above at footnote 5) which, as amended by Regulation No 610/90 cited above, provides: `The budget appropriations must be used in accordance with the principles of sound financial management, and in particular those of economy and cost-effectiveness (...).'
(8) - That is to say ERDF projects nos 76.07.04.001 (S23 road project), 87.07.03.001 (Zuiderbrug Venlo) and 88.07.04.004 (A2 - Maastricht Airport), as well as the abovementioned projects nos 84.07.03.003, 85.07.04.005, 87.07.04.001, 87.07.04.004 and 88.07.04.002 (see footnote 1 above).
(9) - That is to say projects nos 80.07.03.002, 84.07.03.004, 87.07.04.001, 87.07.04.004 and 88.07.04.002.
(10) - That is to say projects nos 84.07.03.003, 85.07.04.005, 87.07.04.001, 87.07.04.004 and 88.07.04.002.
(11) - As regards the other three projects mentioned in the abovementioned letter of 28 April 1995 from Mr García Lombardero to the Ministry, see footnote 12 below and relevant section of text.
(12) - Those are abovementioned projects nos 76.07.04.001, 87.07.03.001 and 88.07.04.004 (see footnote 8 above), as well as project no 86.07.03.002 (Maastricht Airport). Following a written reminder by the Netherlands authorities dated 31 July 1995, the Commission confirmed by telephone that an extension had also been granted for project no 88.07.03.001 (Oosterluis).
(13) - As the Commission informed the Ministry in a letter of 25 October 1995 signed by Mr García Lombardero.
(14) - Judgments in Case 26/76 Metro v Commission [1977] ECR 1875 and in Joined Cases 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473.
(15) - Judgment in Case T-331/94 IPK-München v Commission [1997] ECR II-1665.
(16) - Judgment in Case 22/70 Commission v Council [1971] ECR 263.
(17) - See, inter alia, judgment in Case T-3/93 Air France v Commission [1994] ECR II-121, paragraphs 57 to 59.
(18) - See, inter alia, orders in Case C-25/92 Miethke v Parliament [1993] ECR I-473, paragraph 10, Case C-64/93 Donatab and Others v Commission [1993] ECR I-3595, paragraph 13; and judgment in Case T-83/92 Zunis Holding and Others [1993] ECR II-1169, paragraph 30.
(19) - Judgment in Case T-81/97 Regione Toscana v Commission [1998] ECR I-2889.
(20) - See Council Regulation (EEC) No 4256/88 of 19 December 1988 implementing Regulation (EEC) No 2052/88 as regards the EAGGF, Guidance section (OJ 1988 L 374, p. 25), as amended by Council Regulation (EEC) No 2085/93 of 20 July 1993 (OJ 1993 L 193, p. 44).
(21) - See, inter alia, judgment in Case 133/79 Sucrimex v Commission [1980] ECR 1299, paragraphs 15 to 18.
(22) - It must be assumed that on 28 July 1995 the Commission must have received at least the request for final payment regarding five projects communicated to it by the Netherlands authorities on 1 June 1995 (see footnote 10 above).
(23) - See also judgment in Case 44/81 Germany v Commission [1982] ECR 1855, paragraphs 10 to 12.
(24) - See judgment in Case 190/84 Les Verts v Parliament [1988] ECR 1017, paragraph 8.
(25) - See judgment in Case 60/81 IBM v Commission [1981] ECR 2639, paragraphs 10 to 12. See also order of 16 July 1998 in Case T-274/97 Ca'Pasta v Commission [1998] ECR II-0000, paragraphs 24 to 30. The letter in which the Commission informs a company of an internal procedure leading to cancellation of financial assistance granted to it and of recovery of the amount already paid must be regarded as a provisional informative measure intended to pave the way for the final decision. The Court of First Instance reaffirmed that the adverse effects which may stem from the fact that the procedure in question is still underway are no more than the logical consequence of its being initiated and, for as long as the Commission merely adopts provisional measures, are not indicative of an act producing binding legal effects capable of affecting the applicant's interests. See also judgment in Case 114/86 United Kingdom v Commission [1988] ECR 5289, paragraphs 12 to 15, in particular paragraph 13. A Commission decision to follow a particular line of conduct with regard to the establishment of restricted lists of candidates for service contracts in the framework of ACP-EEC cooperation is not a challengeable act. In the Court's words `it is not the announcement of that intention but the drawing-up of the lists themselves which is capable of having legal effects, in so far as it may result in the omission of certain undertakings from those lists and thus deprive them of the possibility of participating in the contracts in question.'
(26) - The outcome of the investigation into the alleged confirmatory nature of the letter at issue in relation to that of 7 April 1995 (see paragraphs 6 and 11 above) does not alter the conclusion which I am here proposing to the Court, so much so that it is more or less superfluous to mention it. Thus, it is merely for the sake of completeness that I express a view on the point at issue. I concur with the applicant Government that the letter of 28 July 1995 not merely referred to a fresh examination of the situation by the Commission as a result of matters pointed out by the Netherlands authorities, but also contained new elements (interpretation of Article 12 in conformity with the interpretation given in the letter of 7 April 1995 and list of a series of projects subject to a time limit for completion different from that laid down in Article 12 or in respect of which the deadline for presentation of the request for payment has been suspended on legal grounds), thus showing as clearly as may be that such an investigation had taken place. That re-examination may, moreover, take the form of a meeting organised at the Commission's initiative with the addressee of the earlier act to discuss questions forming the subject-matter of that act, even if such meeting were to reveal no new element and would not result in the Commission's adopting a different view (see judgment in IPK-München v Commission, cited above at footnote 17, paragraph 26). Thus, in my view and in accordance with the Court's case-law (see, inter alia, order of 4 May 1998 in Case T-84/97 BEUC v Commission [1998] ECR II-795, paragraph 52 and judgment in Case C-480/93 P Zunis Holding and Others [1996] ECR I-1, paragraphs 11-14), the act contested in the first action cannot have been merely confirmatory of the letter of 7 April 1995 (it would be another question whether that last letter is to be deemed actionable under Article 173 of the Treaty or merely a provisional measure).
(27) - Under Article 92(2) of the Rules of Procedure public-policy grounds may be raised at any time by the Court of its own motion (see, inter alia, order of 4 June 1986 in Case 78/85 Group of the European Right v European Parliament [1986] ECR 1753, paragraphs 9-11.
(28) - According to the Court's case-law, moreover, recourse to an interpretation based on the purpose and general scheme of a Community provision is necessary only where its wording is not amenable to a clear and uniform interpretation, in particular where there are discrepancies between the different language versions; see judgment in Case 6/74 Moulijn v Commission [1974] ECR 1287. I would observe incidentally that this question has not been before the Court in any other proceedings, which bears out the fact that there is no interpretative problem concerning the mandatory nature of the deadline for the submission of requests for final payment laid down in Article 12 [and in analogous provisions in : (i) Article 9(2) of Council Regulation (EEC) No 2080 of 20 July 1993 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the financial instrument of fisheries guidance (OJ 1993 L 193, p. 1); (ii) Article 8 of Council Regulation (EEC) No 4255/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Social Fund, as amended by Council Regulation (EEC) No 2084/93 of 20 July 1993 (OJ 1993 L 193, p. 39) and (iii) Article 10 of Regulation No 4256/88, cited above, as amended by Regulation No 2085/93, cited above (see footnote 20)]. In the judgment delivered in Case T-81/97 (see footnote 19, paragraphs 50-52) the Court of First Instance upheld the action on another ground, namely that the period laid down in Article 10 of Regulation No 4256/88 was a deadline for sending the request and not for its receipt by the Commission.
(29) - According to the Commission, around 2 000 requests for final payment (some relating to several projects) were submitted to it in the first three months of 1995 in respect of projects financed by the ERDF. Automatic release, under Article 12, of portions of sums already committed is said to have occurred in the case of around 500 projects.
(30) - See, inter alia, judgments in Case 78/74 Deuka and Others [1975] ECR 421 and Case C-325/91 France v Commission [1993] ECR I-3283, paragraph 26. The principle of legal certainty, however, requires that a provision laying down a preclusive period, particularly one which may have the effect of depriving a Member State of the payment of financial aid its application for which has been approved and on the basis of which it has already incurred considerable expenditure, should be clearly and precisely drafted so that the Member States may be made fully aware of the importance of their complying with the time-limit (see judgment in Germany v Commission, cited above in footnote 23, paragraph 16).
(31) - As the applicant pointed out, in the context of the structural funds partnership in attaining the common goals operates, subject to observance of the respective financial, legal and institutional competence of the partners (Commission and authorities designated by the Member State concerned), in regard to the preparation and financing, as well as the ex ante appraisal, monitoring and ex post evaluation of operations (see Article 4 of Regulation No 2052/88, as replaced by Article 1 of Regulation No 2081/93).
(32) - In that connection the Netherlands cited Regulation (EEC) No 724/75 of the Council of 18 March 1975 establishing a European Regional Development Fund (OJ 1975 L 73, p. 1).
(33) - Hereinafter `Regulation No 1787/84' (OJ 1984 L 169, p. 1). Article 28 aforesaid made final payment to the Member State concerned of the amount of the ERDF assistance subject to presentation of the following details: the name of the undertaking concerned or, in the case of infrastructure projects, the name of the responsible authority, the location of the investment, total public expenditure incurred as from the twelfth month before the date on which the Commission receives the request for assistance and that part of the amount for which payment is applied for, the amount of the payment requested, the amount actually invested and confirmation that the investment made conforms with the initial project, the date of completion of the investment, the number of jobs created or maintained by investments in industry, the crafts and the services sector, and the socio-economic effects of the measures undertaken which may be assessed at this stage.
(34) - None the less, the applicant states that, under Article 15(1) of Regulation No 2052/88, as replaced by Article 1 of Regulation No 2081/93 (see paragraph 14 above), the grant of ERDF assistance for projects in respect of which the Commission adopted a decision prior to 1 January 1989 continues to be governed by the relevant provisions of Regulation No 1787/84.
(35) - See footnote 29 above and relevant part of text.
Full & Egal Universal Law Academy