(Appeals – Commission decision refusing to pay the balance of financial aid)

Summary of the Judgment

(EC Statute of the Court of Justice, Art. 49)

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1), first para. (c))

3. Appeals – Pleas in law – Plea put forward for the first time in the appeal – Inadmissible

(Rules of Procedure of the Court, Arts 42(2) and 118)

1.A party which is neither partially nor wholly unsuccessful in its submissions before the Court of First Instance is not entitled to appeal against the judgment under appeal before the Court of Justice, within the meaning of the second paragraph of Article 49 of the EC Statute of the Court of Justice.

(see para. 42)

2.It follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1), first paragraph, (c), of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. Where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements regarding the statement of grounds under those provisions.

However, provided that the applicant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in an appeal. If an applicant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose.

An appeal which seeks specifically to contest the assessment by the Court of First Instance of several points of law which were referred to at first instance and which contains specific indications of the aspects of the judgment under appeal criticised and the pleas in law and the arguments on which it is based is, therefore, admissible.

(see paras 48-51)

3. Under Article 118 of the Rules of Procedure of the Court of Justice, Article 42(2) of those rules, which prohibits generally the introduction of new pleas in law in the course of the procedure, applies to the procedure before the Court of Justice on appeal from a decision of the Court of First Instance. In an appeal the Court’s jurisdiction is thus confined to review of the assessment by the Court of First Instance of the pleas argued before it.

(see para. 52)

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JUDGMENT OF THE COURT (Sixth Chamber) 29 April 2004 (1)

(Appeals – Commission decision refusing to pay the balance of financial aid)

In Joined Cases C-199/01 P and C-200/01 P,

IPK-München GmbH, established in Munich (Germany), represented by H.-J. Priess, Rechtsanwalt, with an address for service in Luxembourg, and Commission of the European Communities, represented by J. Grunwald, acting as Agent, with an address for service in Luxembourg,

appellants,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 6 March 2001 in Case T-331/94 IPK-München v Commission [2001] ECR II-779, seeking the partial annulment of that judgment,

THE COURT (Sixth Chamber),

composed of: V. Skouris, acting for the President of the Sixth Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen and F. Macken (Rapporteur), Judges,

Advocate General: J. Mischo, Registrar: R. Grass,

after hearing the Opinion of the Advocate General at the sitting on 10 July 2003,

gives the following

1.1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2.2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

or

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

IPK expressed its disagreement with the contents of the letter of 30 November 1993, in particular in a letter to the Commission dated 28 December 1993. On 29 April 1994 IPK met with representatives of the Commission in order to discuss their differences.

By the contested decision, the Director of DG XXIII informed IPK that there was nothing in its letter of 28 December 1993 which would lead the Commission to change its opinion. He confirmed that, for the reasons set out in the letter of 30 November 1993, the Commission would not make any further payment in respect of the project. Furthermore, it would continue to review with the other services whether or not it should ask for a refund by IPK of part of the 60% aid already paid.

Procedure

By application lodged at the Registry of the Court of First Instance on 13 October 1994, IPK brought an action seeking annulment of the contested decision.

By judgment of 15 October 1997 in Case T-331/94 IPK v Commission [1997] ECR II-1665, the Court of First Instance dismissed that application.

In paragraph 47 of that judgment, the Court of First Instance held:

By application lodged at the Registry of the Court of Justice on 22 December 1997, IPK brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 15 October 1997 in IPK v Commission.

In its judgment of 5 October 1999 in Case C-433/97 P IPK v Commission [1999] ECR I-6795, the Court of Justice held:

In circumstances such as those, it was for the Commission to show that, notwithstanding the interference in question, [IPK] continued to be able to manage the project in a satisfactory manner.

It follows that the Court of First Instance erred in law by requiring [IPK] to furnish proof that the Commission officials’ actions made it impossible for it to engage in proper cooperation with its partners in the project.

Consequently, the Court of Justice set aside the judgment of the Court of First Instance of 15 October 1997 in IPK v Commission and, in accordance with the first paragraph of Article 54 of the EC Statute of the Court, it referred the case back to the Court of First Instance.

Following that referral, IPK raised two pleas for annulment before the Court of First Instance, alleging infringement of a number of general legal principles and of Article 190 of the EC Treaty (now Article 253 EC).

The judgment under appeal

As regards the subject-matter of the dispute, the Court of First Instance found, in paragraph 35 of the judgment under appeal, that the letter of 30 November 1993 was in two parts. The first part, namely points 1 to 5 of the letter, concerned the Commission’s refusal to pay the second instalment of the aid and therefore contained the grounds on which the contested decision was based. The second part, points 6 to 12 of the letter, concerned the possible recovery of 60% of the aid that had already been paid.

The Court of First Instance held, in paragraph 36 of the judgment under appeal, that, as the Commission acknowledged at the hearing, points 6 to 12 of the letter of 30 November 1993 were not among the grounds on which the contested decision was based. Since those points were raised merely in the context of a possible future Commission decision requiring repayment of the instalment of the aid that had already been paid, the Court of First Instance held that the arguments advanced by IPK in its application relating to points 6 to 12 of the letter of 30 November 1993 had to be held to be inadmissible.

As regards the first plea raised by IPK, on the alleged infringement of several general legal principles, the Court of First Instance first summarised, in paragraphs 42 to 55 of the judgment under appeal, the parties’ arguments on the time-limit provided for the completion of the project. It concluded that the decision to grant the aid of 4 August 1992 and the declaration attached to it required IPK to complete the project by 31 October 1993 at the latest and that on page 89 of its final report, IPK acknowledged that that was the date for completion of the project.

Second, in paragraphs 56 to 63 of the judgment under appeal, the Court of First Instance examined the parties’ arguments on the state of the project on 31 October 1993, before concluding that it was not disputed that at that date the project did not fulfil the conditions of IPK’s proposal, at least in so far as concerned the seventh stage.

Third, in paragraphs 64 to 75 of the judgment under appeal, the Court of First Instance considered the justifications put forward by IPK for exceeding the time-limit of 31 October 1993, namely the late payment of the first instalment of the financial aid, the meeting of 24 November 1992 and the Commission’s attempts to involve Studienkreis in the implementation of the project. According to the Court of First Instance, it is clear from the file that from the summer of 1992 until at least 15 March 1993, the Commission continued to exert pressure on IPK to involve Studienkreis in the project.

Fourth, in paragraphs 76 to 85 of the judgment under appeal, the Court of First Instance considered whether the Commission had produced evidence that, in spite of the interference designed to bring about Studienkreis’s involvement in the project, IPK continued to be able to manage the project in a satisfactory manner (see the judgment of the Court of Justice of 5 October 1999 in IPK v Commission, paragraph 16). If account is taken of the fact that the Commission’s interference delayed the project until March 1993, the Court of First Instance held, in paragraph 84 of the judgment under appeal, that it cannot be inferred that the fact that the project was only partially performed by 31 October 1993 is also attributable to IPK’s alleged incompetence.

In the judgment under appeal, the Court of First Instance held, inter alia, the following:

In those circumstances and since the Commission has failed to put forward any other arguments, it must be held that the Commission has not shown that, in spite of its interference, in particular that intended to involve Studienkreis in the … project, “[IPK] continued to be able to manage the project in a satisfactory manner”.

Therefore, given that, first, from the summer of 1992 until at least 15 March 1993 the Commission insisted that [IPK] involve Studienkreis in the … project (even though [IPK’s] proposal and the decision granting the aid did not provide for that undertaking’s participation in the project), – something which necessarily delayed realisation of the project – and that, second, the Commission has not shown that, in spite of its interference, [IPK] continued to be able to manage the project in a satisfactory manner, it must be held that the Commission acted in breach of the principle of good faith by refusing to pay the second instalment of the aid on the ground that the project was not completed on 31 October 1993.

The Court of First Instance therefore accepted that plea, without there being any need to examine the Commission’s other actions.

In paragraphs 88 and 89 of the judgment under appeal, the Court of First Instance set out the Commission’s argument alleging unlawful collusion between the Head of Division of DG XXIII, Mr Tzoanos, referred to in paragraph 10 of the present judgment, 01-Pliroforiki and IPK. It went on to dismiss that plea in the following terms:

… there is no mention in either the contested decision or the letter of 30 November 1993, to which the [contested] decision refers, of collusion between Mr Tzoanos, 01-Pliroforiki and [IPK], which prevented payment of the second instalment of the aid to IPK. The [contested] decision and the letter of 30 November 1993 do not, furthermore, give any indication that the Commission considered that the way in which the aid had been granted to IPK was irregular. In those circumstances, the Commission’s explanation concerning the alleged existence of collusion between the parties concerned cannot be regarded as clarifying in the course of the proceedings the reasons stated in the contested decision (see, to that effect, Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case T-16/91 RV Rendo and Others v Commission [1996] ECR II-1827, paragraph 45; and Case T-77/95 RV Ufex and Others v Commission [2000] ECR II-2167, paragraph 54).

If account is taken of the fact that, under Article 173 of the EC Treaty (now, after amendment, Article 230 EC), the Court of First Instance must confine itself to a review of the legality of the contested decision on the basis of the reasons set out in that measure, the Commission’s argument concerning the principle fraus omnia corrumpit cannot be upheld.

It must be added that if the Commission, having adopted the contested decision, had taken the view that the evidence mentioned in paragraph 89 above was sufficient to conclude that there was collusion between Mr Tzoanos, 01-Pliroforiki and [IPK] which had vitiated the procedure by which aid was allocated to the … project, rather than pleading in the present proceedings a ground which was not mentioned in the contested decision, it could have withdrawn that decision and adopted another decision not only refusing to pay the second instalment of the aid but also ordering repayment of the instalment that had already been paid.

Accordingly, the contested decision must be annulled without there being any need to consider the other plea advanced by [IPK].

The Court of First Instance therefore annulled the contested decision and ordered the Commission to bear its own costs and to pay the costs incurred by IPK before the Court of First Instance and the Court of Justice.

The appeals

By its appeal, IPK claims that the Court should:

–set aside the judgment under appeal in so far as it starts from the premiss, in paragraphs 34 to 36, that points 6 to 12 of the reasons of the Commission’s letter of 30 November 1993 do not form part of the grounds for the contested decision;

–dismiss the Commission’s appeal as inadmissible, or alternatively as unfounded;

–order the Commission to pay the costs.

IPK relies on three grounds in support of its appeal, alleging, first, misappreciation of the subject-matter of the dispute, second, infringement of the obligation to state reasons, and third, infringement of the binding effect of the judgment of the Court of Justice of 5 October 1999 in IPK v Commission.

By its appeal the Commission claims that the Court should:

–set aside the judgment under appeal and dismiss the action brought by IPK against the contested decision;

–alternatively, set aside the judgment under appeal and refer the case back to the Court of First Instance;

–dismiss IPK’s appeal as inadmissible, or alternatively as unfounded;

–order IPK to pay the costs.

In its appeal, the Commission puts forward five grounds of appeal alleging, first, incomplete examination of the statement of reasons of the contested decision and infringement of the prohibition of unjust enrichment; second, incorrect assessment of the alleged unlawful collusion between Mr Tzoanos, 01-Pliroforiki and IPK; third, incorrect assessment of the Commission’s proposal to involve Studienkreis in the project; fourth, failure to examine the consequences of an infringement of the principle of good faith; and fifth, failure to consider the principle dolo agit, qui petit, quod statim redditurus est and the principle fraus omnia corrumpit.

The admissibility of the appeals

IPK’s appeal

Article 92(2) of the Rules of Procedure of the Court of Justice provides as follows:

‘The Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case or declare, after hearing the parties, that the action has become devoid of purpose and that there is no need to adjudicate on it; it shall give its decision in accordance with Article 91(3) and (4) of these Rules.’

The first and second paragraphs of Article 49 of the EC Statute of the Court of Justice provide as follows:

‘An appeal may be brought before the Court of Justice, within two months of the notification of the judgment under appeal, against final decisions of the Court of First Instance and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning lack of competence or inadmissibility. Such an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. …’

As is apparent from paragraph 28 of the judgment under appeal, IPK had asked the Court of First Instance to annul the contested decision. By holding, in the operative part of the judgment under appeal, that that decision must be annulled in its entirety, the Court of First Instance therefore granted in full the relief sought by IPK. It follows that, since IPK was neither partially nor wholly unsuccessful in its submissions before the Court of First Instance, it is not entitled to appeal against the judgment under appeal before the Court of Justice, within the meaning of the second paragraph of Article 49 of the EC Statute of the Court of Justice.

Therefore, it follows from all of the foregoing that, without it being necessary to examine the ground of inadmissibility raised by the Commission, IPK’s appeal must be dismissed as inadmissible.

The Commission’s appeal

IPK claims that the appeal brought by the Commission is clearly inadmissible. It argues that the Commission expressly raises only procedural errors. However, those are not procedural errors that can be relied on in an appeal before the Court. They are only infringements of rules relating to court proceedings, which concern neither the content of the judgment nor errors in the application of the relevant law.

IPK also argues that an incomplete or incorrect legal assessment, wrongly relied on by the Commission in respect of its first, second and third procedural errors, does not constitute such a procedural error. That is clear from the fact that that incorrect or incomplete legal assessment affects the content of the judgment. Moreover, the absence of an examination of the legal consequences of an infringement of general legal principles constitutes an error of substance which vitiates the judgment, and not a procedural error.

Furthermore, the first, second, fourth and fifth grounds of appeal concern, first, the issue of IPK’s unsatisfactory performance and, second, the issue of unlawful collusion, alleged apparently to be in bad faith, between the Head of Division in DG XXIII, 01-Pliroforiki and IPK. They are therefore only issues of fact, which cannot be the subject of a review by the Court of Justice, which in an appeal is limited to a review of the law. In reality the Commission’s appeal seeks a fresh examination of arguments already put forward before the Court of First Instance, which is impossible, according to the case-law of the Court of Justice.

First of all, in that regard, since all the Commission’s grounds of appeal seek to challenge the assessment by the Court of First Instance of questions of law and, therefore, a review both of the legal classification of the facts and the legal consequences drawn therefrom by the Court of First Instance, the objection of inadmissibility raised by IPK, who argues that those grounds of appeal only concern the assessment by the Court of First Instance of the facts, is unfounded. Furthermore, the incorrect classification by the Commission of those grounds of appeal as alleged procedural defects has no effect on the question of their admissibility.

Second, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(1)(c) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34; Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68; and Case C-41/00 P Interporc v Commission [2003] ECR I-2125, paragraph 15).

Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements regarding the statement of grounds under those provisions (see, in particular, the order in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24, and the judgment in Interporc v Commission, paragraph 16).

However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see, in particular, the judgment in Interporc v Commission, paragraph 17, and the order in Case C-488/01 P Martinez v Parliament [2003] ECR I-0000, paragraph 39).

In the present case, the appeal seeks specifically to contest the assessment by the Court of First Instance of several points of law which were referred to it at first instance. It contains specific indications as to the aspects of the judgment under appeal criticised and the pleas in law and arguments on which it is based.

Nevertheless, under Article 118 of the Rules of Procedure of the Court of Justice, Article 42(2) of those rules, which prohibits generally the introduction of new pleas in law in the course of the procedure, applies to the procedure before the Court of Justice on appeal from a decision of the Court of First Instance. In an appeal the Court’s jurisdiction is thus confined to review of the assessment by the Court of First Instance of the pleas argued before it (see Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59; Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 62; and the order of 28 June 2001 in Case C-352/99 P Eridania and Others v Council [2001] ECR I-5037, paragraphs 52 and 53).

The Commission, by the first part of the first ground of appeal, first claims that the Court of First Instance made an incomplete assessment of the reasons for the contested decision by failing to take account of the fact that that decision is based on two wholly different reasons, namely, that the project was not completed by 31 October 1993, given that the sixth and seventh stages were missing (see paragraphs 1 and 3 of the letter of 30 November 1993) and also that the work already carried out by IPK in the first to fifth stages and for which it charged the full price, was useless (see paragraphs 2 and 4 of that letter).

The Commission argues that in spite of the fact that its arguments in paragraphs 2 and 4 of the letter of 30 November 1993 do not concern the sixth and seventh stages, but only the preliminary stages of the project during which IPK had carried out a substantial quantity of work, for which it had manifestly had sufficient time, but which was useless, the judgment under appeal, by citing only paragraph 1 of that letter, refers exclusively to the failure to implement the sixth and seventh stages. In so far as the Court of First Instance did not examine the second reason for the refusal of payment relied on by the Commission in the contested decision, the reasons provided in the judgment under appeal are inadequate and it is vitiated by an error of law.

In the present case, it is clear, as the Advocate General pointed out in paragraph 45 of his Opinion, that the Commission did not argue before the Court of First Instance that the points set out in paragraphs 2 and 4 of the letter of 30 November 1993 were sufficient to justify the contested decision and avoid the annulment, which according to the Court of First Instance, must be the consequence of the infringement of the principle of good faith.

Therefore, since the first part of the first ground of appeal constitutes a new ground of appeal, it must be dismissed as inadmissible.

Second, by its fourth ground of appeal the Commission criticises the Court of First Instance for having concluded from the infringement of the principle of good faith that the entire decision was null and void. It argues that the Court of First Instance wrongly assumed that there was a link between the economic value of the sixth and seventh stages of the project which were not realised and the amount of the second instalment of the financial aid which was not paid, which means that it took the view that the value of the sixth and seventh stages of the project amounts to exactly 40% of the total costs of the project.

The Commission claims that the Court of First Instance should have annulled the contested decision solely to the extent that it refused to contribute to the costs that IPK had lawfully incurred for the sixth and seventh stages of the project which, subsequently, did not materialise due to lack of time. In so far as the Court of First Instance held, in paragraph 93 of the judgment under appeal, that the decision should be annulled in its entirety, the Commission argues that it therefore erred in law.

In that regard, it is sufficient to observe that before the Court of First Instance the Commission neither asked in the forms of order sought that any annulment of the contested decision should be partial nor relied on a plea to that effect.

It follows that in so far as the Commission raises a new ground of appeal before the Court of Justice, it cannot criticise the Court of First Instance for failing to partially annul the contested decision with respect to its refusal to pay financial aid for the sixth and seventh stages of the project; the fourth ground of appeal must therefore be dismissed as inadmissible.

It follows from all of the foregoing that with the exception of the first part of the first ground and the fourth ground of appeal, the Commission’s appeal must be held to be admissible.