OPINION OF ADVOCATE GENERAL

ALBER delivered on 3 April 2003 (1)

((Appeal – Agriculture – EAGGF – Cancellation of financial assistance))

I ─ Introduction

The appeal concerns the question of the extent to which the Commission is required, before adopting a decision to reduce, suspend or cancel financial assistance granted under the Structural Funds, to obtain the observations of the Member State concerned.

II ─ Legal background and facts

Article 24, as per Regulation (EEC) No 2082/93, (2) provides as follows: Reduction, suspension and cancellation of assistance

(1) If an operation or measure appears to justify neither part nor the whole of the assistance allocated, the Commission shall conduct a suitable examination of the case in the framework of the partnership, in particular requesting that the Member State or authorities designated by it to implement the operation submit their comments within a specified period of time.

(2) Following this examination, the Commission may reduce or suspend assistance in respect of the operation or a measure concerned if the examination reveals an irregularity or a significant change affecting the nature or conditions for the implementation of the operation or measure for which the Commission's approval has not been sought.

(3) Any sum received unduly and to be recovered shall be repaid to the Commission. Interest on account of late payment shall be charged on sums not repaid in compliance with the provisions of the Financial Regulation and in accordance with the arrangements to be drawn up by the Commission pursuant to the procedures referred to in Title VIII.

For a presentation of the wider legal framework and of the facts of the case, I would refer to paragraphs 1 to 27 of the contested judgment in Case T-143/99 (3) delivered by the Court of First Instance on 14 June 2001. To avoid repetition, only the main points are stated here.

By decision C(92) 3125 of 3 December 1992 the Commission granted Hortiplant S.A.T. (hereinafter Hortiplant) financial assistance. As there were grounds for suspecting irregularities, the Commission carried out an on-the-spot check on 29 and 30 September 1997. An official from the Spanish Finance Ministry (Intervención General del Estado) was present during the check. Reports on the check were drawn up by the Commission, which then sent the file to the Spanish Public Prosecutor.

On 3 April 1998 the Commission sent a letter to Hortiplant drawing attention to facts that might warrant a demand for repayment of the financial assistance. It asked Hortiplant to submit observations on these allegations within six weeks, which Hortiplant proceeded to do on 26 May 1998.

The Spanish authorities received a copy of the Commission's letter of 3 April 1998 and were also requested to submit their comments thereon within six weeks.

On 4 March 1999, having examined Hortiplant's observations, but without having received comments from the Spanish authorities, the Commission, on the basis of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988, (4) issued the contested demand for repayment.

III ─ Judgment of the Court of First Instance

In its judgment of 14 June 2002 the Court of First Instance dismissed the action for annulment of the demand for repayment. In paragraphs 103 and 104 of the judgment, the Court made the following points concerning Article 24 of Regulation No 4253/88:

Lastly, as regards the alleged need for the Commission to receive the observations of the Member State concerned before cancelling financial assistance, it should be noted that Article 24 of Regulation No 4253/88 provides only that the Commission is to conduct a suitable examination of the case, in particular requesting that the Member State concerned or other authorities designated by it to implement the operation submit their comments within a specified period of time, and that, following this examination, the Commission may take the necessary measures if the examination reveals an irregularity.

It does not follow from the wording of that article that the Commission must receive observations from the Member State concerned before cancelling the financial assistance if the examination it has conducted confirms an irregularity.

IV ─ The appeal and the Commission's position

Hortiplant bases its appeal on a plea of misinterpretation of Article 24 of Regulation No 4253/88. The Court of First Instance wrongly assumed in its judgment that the Commission did not need to obtain observations by Spain before adopting its decision. Under Article 24(2), the Commission was empowered to reduce, suspend or cancel financial assistance only where it had had an opportunity to consider all facts relevant to the decision. These included in particular the observations of the beneficiary and of the Member State concerned.

As interpreted in the contested judgment, that provision would however mean that the comments of the Member State concerned are required only where the Commission continues to entertain doubts as to whether the financial assistance has been used properly but has been unable in the course of its own investigations to confirm those doubts. This would however signify that the Commission is not even under an obligation to consult the Member State concerned if it concludes from its investigations alone that it is appropriate to reduce, suspend or cancel the financial assistance.

Hortiplant refers to Article 4(1) of Regulation No 2052/88, (5) which states that Community operations in the field of structural development are to be such as to complement or contribute to corresponding national operations. They are to be established through close consultations between the Commission, the Member State concerned and the competent authorities designated by the latter. The consultations are regarded as the partnership which cover the preparation, financing, monitoring and assessment of operations. This conception is inconsistent with the view that the Commission may in certain circumstances dispense with the observations of the State concerned.

With reference to the case-law concerning the Social Fund, (6) Hortiplant emphasises that the submission of comments by the Member State concerned is an essential procedural requirement. The Commission's letter of 3 April 1998, in which it simply invited Spain, as a matter of mere courtesy, to provide its observations in the matter, did not meet that requirement. The Commission had, in particular, also omitted to transmit Hortiplant's observations on the Commission's complaints to the Spanish Government.

The Commission, on the other hand, contends that the Court of First Instance interpreted Article 24 correctly. Under that provision it suffices for the Member State to be given an opportunity to submit its comments on the facts established within an appropriate period of time. There is however no requirement for the Member State actually to submit observations. The Commission may reduce, suspend or cancel financial assistance without having received such observations. The Commission bases its opinion on the wording of Article 24, according to which the Member State concerned is requested to submit its comments and to do so within a period of time specified by the Commission. If the Member State submits comments, this is to be taken into account in the subsequent decision-making process. If however it fails to submit comments within the specified period, the Commission is then free to pursue the procedure and adopt a decision.

In the Commission's view, the case-law cited by Hortiplant is not applicable. It was handed down in respect of another structural fund and provisions that were formulated very differently.

In addition, it follows from those provisions that the Member State concerned only has to be given an opportunity to submit comments. The Court thus annulled the Commission's decisions in Oliveira (7) and Foyer culturel du Sart-Tilman (8) because the Member States concerned had not been given an opportunity to submit comments on the facts established.

In the present case, Spain was offered an opportunity to submit comments when it was sent the letter of 3 April 1998. Furthermore, a Spanish official was present at the 1997 on-the-spot check in the course of which the irregularities were ascertained.

V ─ Appraisal

According to the wording of Article 24(1), the Commission requests the Member State concerned to submit, within a specified period of time, its comments on the examination undertaken by the Commission. The text says nothing, at least not expressly, about what happens if the Member State does not submit comments within the specified period of time.

Paragraphs 2 and 3 of Article 24 do not address this question either. They simply empower the Commission to reduce or suspend financial assistance if the examination confirms the evidence of irregularities. The provisions state further that any sums received are to be repaid. It follows that the wording of Article 24 cannot support the appellant's contention. The wording is more consistent with the Commission's view that it is sufficient to give the Member State concerned an opportunity to comment on the outcome of the investigation, but that possession of such comments is in no way a mandatory precondition.

Hortiplant relies further on the fact that financial assistance from structural funds is provided in the form of a partnership between the Commission and the national authorities. On this point, it refers in particular to Article 4 of Regulation No 2052/88.

This reference also fails to convince. The fact that a partnership exists between the authorities concerned does not of itself make the Commission's decision, taken on the basis of Article 24 of Regulation No 4253/88, a legal act requiring participation by the Member States in the form of the submission of comments. It is equally compatible with the concept of such a partnership that the Member State simply be given an opportunity to comment but that it be open to it to express a view or to say nothing, so that its comments do not become an essential precondition for adoption of the decision by the Commission.

The partnership, invoked by the appellant, between the Commission and the authorities of the Member States does however seem to be relevant in another respect to the interpretation of Article 24. The 20th and 25th recitals and Article 4 of Regulation No 2052/88 specify that Community operations in the field of structural development should simply complement corresponding national operations. Close consultations between the Commission and the Member State concerned are called for and all parties are required as partners, each within the framework of its responsibilities and powers, to pursue a common goal. It follows from these provisions that the two sovereign authorities involved in the financial assistance, namely the Commission and the Member States, must contribute to its success. The Member States, when called upon by the Commission to comment, are consequently required to respond if they have observations to make. It is on account of this obligation on the Member States' authorities to cooperate, laid down in Regulation No 2052/88, that a failure on the part of the Member States to respond to a request to submit comments cannot have the effect that the Commission is prevented from taking the procedure further. The Member State's silence would otherwise be able to be used as a veto. Support for such a power of veto is however to be found neither in the wording of Article 24 nor in the spirit of the participatory procedure, less still in the Member State's shared responsibility for successful implementation of the financial assistance. This is also borne out by the fact that the Member State has to submit comments on the outcome of the Commission's investigation within a specified period of time.

Furthermore, even if the Member State concerned is of a different view, that does not stop the Commission from proceeding to reduce, suspend or cancel the financial assistance. The Commission is required to examine any comments submitted by the Member State concerned. But that does not mean that it must arrive at the same conclusion. There is thus still less reason for the Commission to be bound by the silence of a Member State in such a way that no decision may be adopted by it until the Member State has stated its position.

It is even more important that a possible failure by the Member State concerned to submit comments should not prevent a demand for repayment from being made where, as in the present case, the monies are paid to the beneficiary by the Commission direct, rather than by the Member State. Usually, the assistance from the structural funds and from the EAGGF takes the form, in the first instance, of a payment by the Commission to the Member State concerned, the latter then passing the monies on to the final beneficiary. This is clear from Article 21 of Regulation No 4253/88, as amended by Regulation No 2082/93. Such an approach is in keeping with the principle of subsidiarity, according to which implementation of the forms of action proper to the concepts governing Community assistance falls mainly within the area of competence of the Member States, as can be seen from the sixth recital in the preamble to Regulation No 2082/93. According to Article 14(1) of Regulation No 4253/88, as amended by Regulation No 2082/93, applications for assistance are however to be submitted directly to the Commission, rather than via the Member States, in the case of the technical assistance measures referred to in Article 5(2)(e) of Regulation No 2052/88 undertaken at the initiative of the Commission. In such cases the entire process of financial assistance takes place directly between the Commission and the final beneficiary. In such cases the involvement of the Member State in which the financial assistance is granted is less extensive. It may therefore see less cause to comment on the facts ascertained by the Commission. It would however run counter to the entire course of such financial assistance, which has been granted by the Commission to the final beneficiary direct, for the submission of comments by the Member State concerned to become a precondition for the Commission to be able to demand repayment on the basis of Article 24 of Regulation No 4253/88, as amended by Regulation No 2082/93 in such cases.

26. Secondly, it is clear from this case-law that the Court does not, even in cases where the financial assistance is provided via the authorities of the Member State, require the Member State concerned actually to submit comments. It suffices for it to be given an opportunity to do so. (12) Similarly, in its judgment in Socurte, cited by Hortiplant in the oral procedure, the Court required only that the Member State be given an opportunity to comment before the assistance was reduced. (13) Furthermore, in the various cases cited by Hortiplant, the Member State's position as a link in the chain between the Commission and the final beneficiary was precisely the reason why the opportunity of stating a position was viewed as an essential procedural requirement. (14) In the present case, however, it is this position as intermediary that does not apply, which again supports the view that the submission of comments by Spain should not be regarded as an essential precondition for adoption of the contested decision.

27. According to the findings of the Court of First Instance steps were taken to involve Spain, the Member State concerned. Hortiplant disputes these findings in so far as it considers that Spain was sent no more than a courtesy letter, which in the appellant's view was insufficient as a means of formally calling on the Member State to be involved.

28. According to Article 225(1) EC an appeal is confined to points of law. That limit is laid down in more detail in the first paragraph of Article 51 of the EC Statute of the Court of Justice. As the Court has held on several occasions, an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. An appeal is therefore admissible only in so far as it is claimed that the decision of the Court of First Instance is incompatible with the rules of law the application of which it was under a duty to ensure. (15)

29. In so far, however, as the Court of First Instance, in ruling that transmission of the copy of the letter of 3 April 1998 addressed to Hortiplant constituted a request to submit comments within the meaning of Article 24 of Regulation No 4253/88 not only assessed the facts but also assigned to them a classification, the Court has jurisdiction to examine this plea. (16)

31. Nor does the fact that Hortiplant's comments in response to the Commission's claims were not passed on to the Spanish authorities constitute a misapplication of Article 24. Neither the wording of that provision nor the spirit and purpose of the participatory procedure require the comments submitted by the beneficiary to be passed on in this way. In this respect also, therefore, Article 24 of Regulation No 4253/88 cannot be said to have been misapplied or misinterpreted.

32. It is to be concluded from the foregoing that the judgment of the Court of First Instance in Case T-143/99 does not contain any error of law. The appeal should therefore be dismissed.

VI ─ Costs

VII ─ Conclusion

34. In the light of the foregoing I propose that the Court:

(1) dismiss the appeal;

(2) order the appellant to pay the costs.

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1 – Original language: German.

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2 – Council Regulation (EEC) No 2082/93 of 20 July 1993 amending Regulation (EEC) No 4253/88 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 (OJ 1993 L 193, p. 20).

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3 – Judgment of the Court of First Instance in Case T-143/99 Hortiplant S.A.T. v Commission [2001] ECR II-1665.

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4 – 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 (OJ 1988 L 374, p. 1).

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5 – 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).

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6 – Hortiplant cites Case T-73/95 Oliveira v Commission [1997] ECR II-381, paragraph 32, Case C-304/89 Oliveira v Commission [1991] ECR I-2283, Joined Cases T-432/93, T-433/93 and T-434/93 Socurte and Others v Commission [1995] ECR II-503, and Case C-199/91 Foyer culturel du Sart-Tilman v Commission [1993] ECR I-2667 and Case C-200/89 FUNOC v Commission [1990] ECR I-3669.

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7 – Cited in footnote 6.

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8 – Cited in footnote 6.

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9 – Article 6(1) of Council Regulation (EEC) No 2950/83 of 17 October 1983 on the implementation of Decision 83/516/EEC on the tasks of the European Social Fund (OJ 1983 L 289, p. 1) provides: When Fund assistance is not used in conformity with the conditions set out in the decision of approval, the Commission may suspend, reduce or withdraw the aid after having given the relevant Member State an opportunity to comment.

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10 – .Socurte and Others v Commission, cited in footnote 6, paragraphs 65, 71 and 76, and Sart-Tilman v Commission, cited in footnote 6, paragraph 32.

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11 – .Sart-Tilman v Commission, cited in footnote 6, paragraph 27 et seq.; the Opinion delivered in the same case by Advocate General Darmon, point 32, goes even further (... in whatever form, a prior hearing ...).

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12 – Judgment in Sart-Tilman v Commission, cited in footnote 6, paragraph 34.

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13 – Judgment in Socurte and Others v Commission, cited in footnote 6, paragraphs 71 and 76. Paragraph 66 of that judgment, introducing examination of this question, is expressed confusingly in so far as it states that the submission by the Member State of its comments must be established with a sufficient degree of certainty and clarity.

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14 – See the Opinion delivered on 5 March 1991 by Advocate General Darmon in Case C-304/89 Oliveira v Commission [1991] ECR I-2283, I-2292, point 17 et seq., and the judgment in Sart-Tilman v Commission, cited in footnote 6, paragraph 33.

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15 – Order in Case C-89/95 P D. v Commission [1996] ECR I-53, paragraph 13; order in Case C-325/94 P An Taisce and WWF UK v Commission [1996] ECR I-3727, paragraph 28.

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16 – Case C-39/93 P SFEI and Others v Commission [1994] ECR I-2681, paragraph 26; order in An Taisce and WWF UK v Commission, cited in footnote 15, paragraph 30.