Parties

In Joined Cases T‑392/03, T‑408/03, T‑414/03 and T‑435/03,

Regione Siciliana, represented by G. Aiello and A. Cingolo, avvocati dello Stato,

applicant,

Commission of the European Communities, represented by E. de March, L. Flynn and G. Wilms, acting as Agents, assisted by A. Dal Ferro, lawyer,

defendant,

APPLICATION, in Case T‑392/03, for annulment of the Commission’s letter of 6 October 2003, in so far as it concerns the detailed rules for the recovery of sums paid by the European Regional Development Fund (ERDF) towards the ‘Gibbesi Dam’ infrastructure project, and the preceding and subsequent acts; in Case T‑408/03 for annulment of the letter of 6 October 2003, in so far as it concerns the detailed rules for the recovery of sums paid by the ERDF towards the ‘Aragona Favara’ and ‘Piana di Catania’ infrastructure projects, and the preceding and subsequent acts, including in particular the Commission’s letters of 13 August 2003 and 14 August 2003; in Case T‑414/03, for annulment of the letter of 6 October 2003, in so far as it concerns the detailed rules for the recovery of sums paid by the ERDF towards the ‘Messina-Palermo Motorway’ infrastructure project, and the preceding and subsequent acts, including the Commission’s charge notice No 3240406591 of 25 September 2002; and, in Case T‑435/03, for annulment of the Commission’s letter of 24 October 2003 concerning offsetting the debts owed to and by the Commission in connection with ERDF assistance for the ‘Porto Empedocle’, ‘Gibbesi Dam’, ‘Messina-Palermo Motorway’, ‘Aragona Favara’ and ‘Piana di Catania’ projects, and the preceding and subsequent acts,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of I. Pelikánová, President, K. Jürimäe and S. Soldevila Fragoso (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Grounds

Background to the case

6. Following the decision to withdraw the ‘Gibbesi Dam’ assistance, on 19 December 2002 the Commission prepared charge notice No 3240409358, to the attention of the Italian Republic. That note provided that a debt of EUR 39 040 266.10 was owed to the Commission and gave 31 January 2003 as the due date for the payment, adding that failure to pay would give rise to charging of default interest. By letter of 4 August 2003, the Commission sent the applicant, at its request, a statement of the default interest due at that stage.

7. By letters of 4 and 22 September 2003, addressed to the Commission, the Regione Siciliana challenged the calculation of the amount of default interest in respect of the four abovementioned charge notices and contended that the Commission should, of its own motion, have offset the amounts owing against the ERDF’s interim claims for payment in respect of the regional operational programme ‘Sicily 2000-2006’ (‘Sicily ROP’), which in its view would have prevented or suspended charging of that default interest.

10. As it had stated in its letter of 24 October 2003, the Commission proceeded on 7 November 2003 to offset the abovementioned receivables against the abovementioned debts. Similarly, by letter of 20 November 2003, the Commission informed the Italian authorities that it was going to offset the amount owed by the Italian Republic by way of interest in respect of charge notice No 3240409358 (‘Gibbesi Dam’ assistance), an amount of EUR 1 880 126.91. That amount was offset on 3 December 2003.

Procedure and forms of order sought

11. By applications lodged at the Registry of the Court of First Instance on 4, 12, 11 and 24 December 2003, the applicant brought the present actions.

12. By order of the President of the Fifth Chamber of the Court of First Instance of 9 July 2004, the present cases were joined for the purposes of the oral procedure and judgment, pursuant to Article 50 of the Rules of Procedure of the Court of First Instance.

13. By order of 12 January 2006, the Court of First Instance stayed the proceedings in these joined cases until delivery of the judgment of the Court of Justice in Case C‑417/04 P Regione Siciliana v Commission, pursuant to the third paragraph of Article 54 of the Statute of the Court of Justice, and Article 77(a) and Article 78 of the Rules of Procedure of the Court of First Instance. By order of 11 September 2006, the Court of First Instance again stayed the proceedings on the same ground until delivery of the judgment of the Court of Justice in Case C‑15/06 P Regione Siciliana v Commission.

15. The applicant claims that the Court should:

– annul the Commission’s letter of 6 October 2003, in so far as it concerns the detailed rules for recovering the sums paid by the ERDF in respect of the ‘Gibbesi Dam’ assistance, and the preceding and subsequent acts (Case T‑392/03);

– annul the Commission’s letter of 6 October 2003, in so far as it concerns the detailed rules for recovering the sums paid by the ERDF in respect of the ‘Aragona Favara’ and ‘Piana di Catania’ assistance, and the preceding and subsequent acts, including, in particular, the Commission’s letter of 13 August 2003 and its letter of 14 August 2003 (’the letter of 14 August 2003’) (Case T‑408/03);

– annul the Commission’s letter of 6 October 2003, in so far as it concerns the detailed rules for recovering the sums paid by the ERDF in respect of the ‘Messina-Palermo Motorway’ assistance, and the preceding and subsequent acts, including the Commission’s charge notice No 3240406591 of 25 September 2002 (Case T‑414/03);

– annul the Commission’s letter of 24 October 2003, concerning offsetting the Commission’s receivables against its debts in connection with assistance for the ‘Porto Empedocle’, ‘Gibbesi Dam’, ‘Messina-Palermo Motorway’, ‘Aragona Favara’ and ‘Piana di Catania’ assistance, and the preceding and subsequent acts (Case T‑435/03);

– order the Commission to pay the costs.

16. The Commission contends that the Court should:

– dismiss the actions as inadmissible;

– in the alternative, dismiss the actions as unfounded;

– order the applicant to pay the costs.

Law

17. Under Article 113 of its Rules of Procedure, the Court of First Instance may, at any time, even of its own motion, consider whether there exists any absolute bar to proceeding with an action and is to give its decision to that effect in accordance with Article 114(3) and (4) of those Rules.

18. Under Article 114(3) of the Rules of Procedure of the Court of First Instance, the remainder of the proceedings are to be oral unless the Court decides otherwise.

19. In this case the Court of First Instance considers itself to be sufficiently informed by the contents of the case-file as regards the admissibility of the actions, and finds that there is no need to hear the oral explanations of the parties in that regard. Nor is it necessary to grant the applicant’s request for the oral proceedings to commence, in view of the economic significance of the case and the questions of principle raised, since that request concerns only the substance of the cases.

Regarding the charge notice of 25 September 2002 and the letters of 13 and 14 August 2003 (Cases T‑408/03 and T‑414/03)

Arguments of the parties

21. The Commission also contends that the applications make no mention of the grounds on which the applicant alleges those acts to be unlawful, thereby infringing Article 21 of the Statute of the Court of Justice, which applies to the Court of First Instance by virtue of Article 53 of that Statute, and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance. Lastly, the Commission rejects the applicant’s argument that the letters of 13 and 14 August 2003 are not autonomous acts in relation to the letter of 6 October 2003 and maintains that those letters are only the logical consequence of the failure on the part of the Italian Republic to pay the sums stated in charge notices No 3240304871 of 3 August 2001 and No 3240303927 of 27 June 2001 within the time-limits set.

22. Lastly, the Commission contends that the applications for annulment of the acts of 25 September 2002 and 13 and 14 August 2003 must be held to be inadmissible because they were brought outside the time-limit of two months and ten days set in that regard. Thus, in the case of the last two acts, they were received by the applicant, according to the stamps placed on them by the presidency of the Regione Siciliana, on 22 or 26 August 2003, while the application in Case T‑408/03 was not lodged until 12 December 2003.

23. The applicant points out that the acts in question cannot be regarded as acts that are autonomously open to an action for annulment. It maintains, however, that those acts failed to state the reasons on which they were based and that it was only in the letter of 6 October 2003 that the Commission informed it of its position. Therefore, the first act which can properly be contested is that letter of 6 October 2003. Moreover, the absence of a statement of the reasons on which the applications for annulment of the acts at issue are based is a clear and logical consequence of the fact that they are not fully autonomous and are open to an action for annulment only if they are read in the context of the letter of 6 October 2003, which sets out their content and their legal basis.

Findings of the Court

24. As a preliminary point, it should be noted that it is not possible to establish clearly, in the light of the forms of order submitted by the applicant in Case T‑408/03, whether its action relates to charge notices No 3240304871 of 3 August 2001 concerning the ‘Aragona Favara’ assistance, and No 3240303927 of 27 June 2001 concerning the ‘Piana di Catania’ assistance, or rather the letters of 13 and 14 August 2003 concerning the default interest due as a result of failure to pay within the time-limits the sums stated in those charge notices. However, that fact has no effect as regards the admissibility of the present actions.

26. Thus, on the one hand, charge notices No 3240304871 of 3 August 2001 concerning the ‘Aragona Favara’ assistance, No 3240303927 of 27 June 2001 concerning the ‘Piana di Catania’ assistance, and No 3240406591 of 25 September 2002 concerning the ‘Messina-Palermo Motorway’ assistance, do not contain any provision requesting the Italian Republic to recover from the applicant amounts unduly paid. There is therefore no reason to conclude that the Italian Republic could not decide to take upon itself the burden of reimbursing the ERDF (see, to that effect, Case C‑417/04 P Regione Siciliana v Commission , paragraph 26).

27. On the other hand, the letters of 13 and 14 August 2003 cannot be regarded as being of direct concern to the applicant. They were in fact addressed to the Italian Republic with copies to the applicant, and their purpose is to claim default interest because the time-limits set in the relevant charge notices were exceeded. Therefore, those letters are merely the logical consequence of the Italian Republic’s failure to pay the sums stated in charge notices No 3240304871 of 3 August 2001 and No 3240303927 of 27 June 2001 within the time-limits stipulated.

28. In view of the foregoing, the actions in Cases T‑408/03 and T‑414/03 must be declared inadmissible in so far as they seek the annulment of the charge notices of 25 September 2002 and the letters of 13 and 14 August 2003, without there being any need to adjudicate on the other pleas of inadmissibility raised by the Commission.

Regarding the letter of 6 October 2003 concerning the calculation of default interest and the Commission’s failure to offset of its own motion (Cases T‑392/03, T-408/03 and T-414/03)

Arguments of the parties

29. The Commission considers that the application for annulment of the letter of 6 October 2003 is inadmissible since, although that letter was addressed to the applicant, it has no direct impact on the latter’s legal position and is not therefore of direct concern to it. That letter relates to matters such as the calculation of default interest on the Commission’s charge notices and the use of offsetting, which concerns debts owed to both the Commission, on the one hand, and the Italian Republic, on the other. The contested decision would have legal effects on the applicant’s position only if the latter was required, as a result of that decision, actually to reimburse the amount in question.

30. According to the Commission, any detrimental effects of the letter of 6 October 2003 would concern only the Italian Republic and not the applicant, which would suffer damage as a result of that letter only if the authorities of that State, by specific and independent action, required it to reimburse the sums which it owes to the Commission. The fact that the letter of 6 October 2003 is formally addressed to the applicant is moreover the result of a transparent, open and simplified management practice of Community accounting positions, since the applicant had taken part in various meetings concerning the assistance in question. Ultimately, only the Italian Republic could seek annulment of the letter of 6 October 2003 and not the applicant, which does not have claims that it seeks to assert.

31. The Commission moreover contends that the letter of 6 October 2003 is not an act open to an action for annulment for the purposes of Article 230 EC. It points out that, in order to be the subject of an action for annulment, the act concerned must be intended from an objective point of view to produce legal effects in relation to third parties and may thus directly affect the latter’s interests by bringing about a distinct change in their legal position. Those conditions are not met in the case of an act in which the Commission merely gives the interpretation it intends to adopt in the application of a rule – in this case with regard to the requirement to pay default interest on the charge notices and to offsetting as a method of recovering debts. The interests of third parties can only genuinely be adversely affected by measures which are actually adopted according to guidance given earlier in such an act, such as a request for payment of default interest on charge notices or actual refusal to use offsetting in order to extinguish debts, according to the criteria laid down in the letter of 6 October 2003 (see, to that effect, Case 114/86 United Kingdom v Commission [1988] ECR 5289, paragraphs 12 and 13).

32. Lastly, as regards Case T‑392/03, the Commission also contends that the action is inadmissible because the applicant has no interest in obtaining the annulment of the letter of 6 October 2003. It points out that the note in question does not concern the ‘Gibbesi Dam’ assistance in any way. The action in Case T‑392/03 relates only to the procedure for payment of the charge notice corresponding to that assistance. Therefore there is no link between the subject-matter of the action and the letter of 6 October 2003. The Commission relies in that regard on Case 88/76 Société pour l’exportation des sucres v Commission [1977] ECR 709, the order in Case C‑164/02 Netherlands v Commission [2004] ECR I‑1177, paragraphs 18 and 24, and the order in Case T‑78/98 Unione provinciale degli agricoltori di Firenze and Others v Commission [1999] ECR II‑1377.

33. The applicant submits that it does not operate as a body separate from the Italian Republic but as a territorial entity of that State, which is the specific recipient of the assistance in question. It also submits that the letter of 6 October 2003 was formally addressed to it and is of direct and individual concern to it, since there is a clear causal link between its individual situation and the act adopted. That letter thus replies to its letter of 22 September 2003 addressed to the Commission, in which it challenged the calculation of the amount of default interest. The applicant also relies on Article 8 of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1), which sets out the principle of ‘partnership’ between the Commission and national and regional authorities. It also points to the references made to it in 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), as amended by Council Regulation (EEC) No 2081/93 of 20 July 1993 (OJ 1993 L 193, p. 5), and in the decisions awarding the assistance in question, and also in its official correspondence with the Commission. The applicant also submits that the Italian Republic had no discretion as regards decisions concerning the financing in the present case.

34. The applicant further maintains that the letter of 6 October 2003 does not constitute a mere expression of the general position adopted by the Commission when faced with a certain type of problem, but rather supplements the statements of reasons contained in the charge notices already prepared. The letter in question is thus an explanatory act with the content of a legal act, in which the Commission set out, for the first time, the reasons of fact and of law substantiating the various charge notices that had been prepared. That letter therefore constitutes, potentially, an act adversely affecting the applicant in so far as it establishes that the charges concerned are genuine and excludes them being the result of procedural errors or accidents.

Findings of the Court

36. It should be recalled that, according to settled case-law, only acts the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts which may be the subject of an action for annulment within the meaning of Article 230 EC (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Joined Cases T‑10/92 to T‑12/92 and T‑15/92 Cimenteries CBR and Others v Commission [1992] ECR II‑2667, paragraph 28).

37. In the present case, the letter of 6 October 2003 did not produce such binding legal effects capable of affecting the interests of the applicant. As regards the first question raised by the applicant, the Commission merely sets out the relevant Community rules concerning the calculation of default interest for the period between the due dates of the charge notices in question and 1 January 2003, the date of the entry into force of the new Community financial regulation, Regulation No 1605/2002. Therefore, the letter of 6 October 2003 does not in itself constitute a claim for payment of default interest or calculate the actual amount of any such interest.

38. The Commission explains in that letter of 6 October 2003 why it did not of its own motion offset the receivables shown in the charge notices in question against the payments intended for the Italian Republic of which the applicant was to be the end recipient. The Commission explains in that regard, first, that such offsetting has been expressly provided for as a method of recovering receivables only since the entry into force of the new financial regulation. Secondly, it explains that in the case of payments since the entry into force of that regulation, the default interest to be paid by the Italian Republic is not the result of the absence of offsetting against the payment made in 2003, but of the failure to reimburse amounts that have been outstanding since their due date. Thus, in its letter of 6 October 2003, the Commission did not adopt a decision, it merely gave reasons why it did not resort to offsetting earlier, which would have avoided or suspended the payment of default interest.

Regarding the letter of 24 October 2003 concerning offsetting (Case T‑435/03)

Arguments of the parties

42. The applicant disputes its alleged lack of standing, putting forward the same arguments as it put forward in support of the admissibility of the applications for annulment of the letter of 6 October 2003 (see paragraphs 33 and 34 above).