OPINION OF ADVOCATE GENERAL

delivered on 17 December 1992 (*1)

Mr President,

Members of the Court,

1.The two actions for annulment before the Court relate to the financing procedure applied by the European Social Fund (‘the Fund’), in accordance with Council Decision 83/516/EEC of 17 October 1983, (1) Council Regulation (EEC) No 2950/83 also of 17 October 1983 (2) and Commission Decision 83/673/EEC of 22 December 1983. (3)

2.The relevant legislation and the ‘machinery’ of that financing procedure have been described in detail in my Opinion in the Infortec, Consorgan and Cipeke cases. (4) I would refer to that Opinion and confine myself to the following observations.

3.The Fund was established by Article 123 of the EEC Treaty and is administered by the Commission. (5) It has ‘the task of rendering the employment of workers easier and of increasing their geographical and occupational mobility within the Community’. It participates inter alia in the financing (6) of operations concerning vocational training carried out within the framework of Member States' labour-market policies and of specific operations carried out with a view to encouraging the implementation of innovatory projects. (7)

4.Applications for financial assistance are submitted on behalf of the Member State concerned by the public body which is co-funding the project.

5.Applications which have been approved are followed by payment of an advance equal either to 50% or to 30% of the assistance granted. (8) Once the training operations have been completed, the organizers send the Commission, through their Member State, a final payment claim containing a detailed report. The Member State certifies the accuracy of the facts and accounts in such claims. (9) The Commission may check the use to which the assistance was put with the help of the Member State concerned. The latter is to ensure that the Commission has access to information concerning operations in progress. (10)

6.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 giving the Member State concerned an opportunity to comment. (11) If sums paid are not used in accordance with the conditions laid down in the decision of approval, they are to be refunded. (12)

7.That is the legal background to the two cases. I shall examine each one in turn.

8.In Case C-334/91, the facts are as follows:

9.On 7 March 1985, through the intermediary of the Belgian authorities, Innovation et Reconversion Industrielle Asbl (‘IRI’) submitted an application for assistance from the Fund in respect of a scheme aimed at training aspiring entrepreneurs in setting up and managing small and medium-sized undertakings. The average participation time per trainee was to be 39 weeks, with a weekly average attendance of 7 hours; however, training was to be kept flexible in order to take account of the trainees' availability. (13)

10.By Decision C(85)937 final/2 of 19 June 1985, the Commission approved the application for assistance (Project No 850209 B6) for a two-year period and for a sum of BFR 27381000 in respect of 196 people. (14)

11.An advance of 30% of the amount approved, namely BFR 8214300, was paid on 10 July 1985. On 15 June 1986, IRI asked for a further advance; however, it also stated that the assistance should be reduced to BFR 20000000. On 4 July 1986, the Ministry requested further information in order to check the eligibility of the expenditure. (15) On 27 July 1986, IRI replied repeating its request for the second advance, which evoked no response. (16) On 16 June 1987, LRI submitted the final payment claim, in which it reduced its estimate of the total amount of assistance to BFR 14783755. (17) On 28 November 1987, the Commission stated in a letter to the Belgian authorities that the final payment claim was not adequately substantiated. On 9 December 1987, the Belgian authorities forwarded to the Commission information supplied by IRI. On 17 March 1989, the Commission carried out an on-the-spot check of the project submitted by IRI in the presence of a representative from the Belgian Labour Ministry.

12.On 6 November 1991, in a letter (No 015036) to the Belgian Ministry for Labour and Employment, the Commission stated that the assistance from the Fund, as altered, would amount to 25/197 of the amount mentioned in the final payment claim, namely BFR 1833588. It further stated that, in view of the advance which had been paid, BFR 6380712 would have to be repaid to the Commission. (18) On 15 November 1991, the letter was notified to IRI by the Ministry for Labour and Employment on the ground that the Commission ‘considers that since the 172 trainees received under 100 hours' training and guidance they cannot be deemed to have been trained.’ (19)

13.On 2 December 1991, IRI's legal adviser asked the Belgian Ministry whether it had been able to submit its comments in accordance with Article 6(1) of Regulation No 2950/83. (20) It replied on 8 December 1991 that the on-the-spot check carried out on 17 March 1989 had ‘in all likelihood’ enabled IRI and the Commission to exchange information concerning the project in the presence of Ministry representatives. (21)

14.On 27 December 1991, IRI lodged an application with the Court for the annulment of the decision contained in the Commission's letter of 6 November 1991.

According to the applicant, that decision should be annulled on the ground that the requirements laid down in Article 6(1) of Regulation No 2950/83 have not been met in that no correspondence was exchanged between the Commission and the Belgian authorities attesting to the fact that the latter had been given an opportunity to comment before the decision was taken to reduce the amount of assistance.

16.Contrary to the Commission's assertion, the letter of 6 November 1991 is not a ‘draft decision’. It constitutes the means whereby a decision is notified, as is borne out by the manner in which it is drafted: ‘Fund assistance, as altered, shall amount to 25/197 of the amount mentioned in the final payment claim (...), namely BFR 1833588. After deduction of the advance paid to the body in question, BFR 6380712 will have to be repaid to the Commission.’ There is no doubt that that document was intended to inform the organizer that it would receive no additional sum and that the Commission would require part of the advance to be repaid. Since the letter of 6 November 1991 had binding legal effects, it was such as to affect IRI's interests by changing the latter's legal position.

17.It should also be noted that the letter was not followed by a decision which would enable the letter to be regarded as a mere preparatory measure and that the Commission has not claimed that the action for annulment is inadmissible on the ground that it is not directed against a decision.

18.Was the decision taken in accordance with Article 6(1) of Regulation No 2950/83 which authorizes the Commission to reduce assistance not used in conformity with the conditions set out in the decision of approval only after the Member State concerned has been given an opportunity to comment?

19.As we have seen, the Member State plays a key role in the procedure for granting Community assistance from the Fund: no contact is required between the Commission and the recipient undertakings as only the Member State deals with the Fund. The Court made that point in its judgment in EISS v Commission: It follows that this procedure creates a financial relationship between the Commission and the Member State on the one hand and between that Member State and the institution which is the recipient of the financial assistance on the other.

20.The Member State is by no means a passive intermediary. It co-finances operations which have been approved. It assumes responsibility in so far as it certifies the accuracy of the facts and accounts in payment claims and can even be called upon to guarantee the successful completion of the training operations. Furthermore, it has ‘secondary liability’ for the repayment of sums unduly paid by the Commission.

21.It is therefore directly affected by a Commission decision to reduce assistance which examines and calls in question a final payment claim which the Member State has, in a manner of speaking, endorsed.

22.Let me stress that a decision to suspend, reduce or withdraw assistance is a very serious matter.

23.Where the decision of approval does not grant the request for assistance in full, the organizer may adapt the training operation which he intends to implement to the conditions and requirements of the decision.

24.On the other hand, where the Commission's final decision does not approve the final payment claim, the situation is completely different. In principle, the training operation has taken place and the expenditure relating thereto has been incurred.

25.Where training operations which are almost entirely financed by public or Community funds are concerned, reductions made by the Fund — and a fortiori requests for reimbursement of part of the advance — may be such as to endanger the stability, or even the financial survival of the organizers, who — a point to bear in mind — have in certain cases, such as this, received an advance not exceeding 30% of the total cost of the project.

26.It is therefore essential that the Member State concerned is given the opportunity, if necessary after contacting the organizer with whom, I repeat, only the Member State deals, to discuss the reduction envisaged both in principle and in terms of the amount involved.

27.The Court has ruled that: ‘Having regard to the central role of the Member State and to the importance of the responsibilities which that State assumes in the presentation and supervision of the financing of training matters, the opportunity for it to comment before a definitive decision to reduce assistance is adopted constitutes an essential procedural requirement the disregard of which renders the contested decision void.’

28.There must therefore be a specific consultation with the Member State concerned where a reduction or withdrawal of assistance is envisaged, all the more so since where there is no reduction or withdrawal the Member State is not required to comment.

29.Such consultation must not however be confused with the exchanges of letters and of information that take place during the procedure in which the project is examined or when it is carried out, pursuant to Article 7(3) of Regulation No 2950/83.

30.Admittedly, as Advocate General Tesauro stated in his Opinion in Funoc v Commission, Article 6(1) of Regulation No 2950/83 does not lay down a formal consultation procedure. Yet — whatever form it may take — there must have been prior consultation.

31.That is especially true where the Commission intends, as in the present case, to reduce the assistance to 12.69% of the sums claimed, which implies not only that the balance will not be paid but also that part of the advance received by the organizer will have to be repaid.

32.There is no document, among those submitted to the Court, establishing that an exchange of letters took place between the Commission and the Belgian authorities which preceded the contested decision and constituted, in whatever form, a prior consultation of those authorities concerning the reduction.

33.Admittedly, the on-thespot check carried out by the Commission on 17 March 1989 took place in the presence of a representative of the Belgian administration.

34.An undated report of that inspection, classified as ‘confidential’, was drawn up by the Commission. There is nothing to suggest that it was communicated to the parties, and at the hearing the Commission's representative confirmed that it had not been communicated to them. The report proposes to take into account only trainees who received more than 100 hours of training and to reduce the Fund's assistance commensurately, namely to BFR 1833588. That is precisely the sum adopted in the final decision of 6 November 1991.

35.There is nothing in the case-file to show that that sum was calculated and adopted during the on-thespot check and could have evoked, there and then, a response on the part of the authorities of the Member State concerned. Moreover, it is stated in the report that a proposal to set the Fund assistance at that amount ‘will be submitted to DG V’, that is to the Commission, which should, if it intended to accept the proposal, have taken its decision only after consulting the Belgian authorities.

36.In response to a question from the applicant company's legal adviser, the Belgian Ministry for Labour and Employment stated that the on-thespot check carried out on 17 March 1989 was ‘in all likelihood the appropriate occasion for you and the Commission to exchange information concerning the project in the presence of a representative from the Ministry for Labour and Employment’.

37.An exchange of information is one thing. To give the Member State concerned an opportunity to state its views on a proposal to reduce assistance is another. Yet, there is nothing to establish that the Member State was consulted before the decision to reduce the assistance was taken.

38.The Court attaches particular importance to that requirement — which I consider to be the embodiment of the principles of audi alteram partem and observance of the rights of the defence — since the Court has interpreted it as an essential procedural requirement which it may hold of its own motion to have been infringed.

39.It follows that the contested decision to reduce assistance should be annulled without its being necessary to consider the other submissions relied upon by IRI.

40.I now turn to Case C-199/91.

41.The Foyer Culturel du Sart-Tilman Asbl (‘Sart-Tilman’), now in liquidation, submitted eleven applications for assistance from the Fund in respect of various vocational training schemes based, in particular, on new technologies. Those applications were approved in part by the Fund.

42.On 9 December 1988, the Belgian Ministry for Labour and Employment informed the Fund that Sart-Tilman was being wound up and requested that all payments be frozen.

43.On 30 October 1989 a statement which, according to the Commission, was drawn up in conjunction with a representative of the Ministry showed a negative balance of BFR 1096053, which was corrected in December 1989 to show a positive balance of BFR 571762, for all of Sart-Tilman's projects.

44.The decision of 18 October 1990 which confirmed that order is, so far as that project is concerned, an act confirming a previous decision, and hence is not capable of being annulled. As the application for annulment was lodged on 28 July 1991, it is accordingly out of time with regard to that measure.

45.In the case of Project 860274 B2, the applicant association concurred in its reply with the Commission's position, and agreed that the outstanding balance to be paid by the Commission amounted to BFR 1431085 and not BFR 2753907. Therefore, there is no longer a dispute in that connection.

The Fund's decisions with regard to Projects 850186 B6, 850077 B4, 870295 B2 and 870296 B2 remain to be considered.

53.It follows, as we have seen, from Article 6(1) of Regulation No 2950/83 that the Commission may decide to reduce assistance not used in conformity with the conditions set out in the decision of approval only after giving the Member State concerned an opportunity to comment.

54.Was that requirement satisfied by the Commission in the case of those four projects?

55.Admittedly, in reviewing a number of final payment claims, the Commission did request further information through the national authorities before making its final decision on the outstanding balance. (*)

56.Such requests for information — which make no mention of a reduction or withdrawal of assistance — cannot take the place of consultation within the meaning of Article 6(1). (*)

57.Further to the two requests from the Belgian Ministry of Foreign Affairs of 31 May and 10 June 1988, (*) the Fund, by letter of 30 June 1988, (*) clearly informed the Belgian administration of its intention to reduce the amount of some of the assistance, in particular that relating to Project 850077 B4. The reasons were made clear in the letter (failure to comply with the conditions set out in the decision of approval). That project had, moreover, already been the subject of an exchange of letters between the Commission and the Ministry for Labour and Employment which led the latter to acknowledge that part of the expenditure was not eligible. (*)

58.It follows that, with respect to that project, to which I shall return in connection with the substance, the requirements of Article 6(1) of Regulation (EEC) No 2950/83 have been met.

59.That is not the case, in my view, with regard to Projects 850186 B6, 870295 B2 and 870296 B2.

60.The first of those projects, submitted by the Walloon Region through the Belgian Ministry for Labour and Employment, was approved for an amount of BFR 18000000 by Fund decision C 85/937. (*) An advance of BFR 5400000 was paid. The Fund requested additional information, (*) which was sent to it on 23 November 1988 by the Ministry for Labour and Employment. (*) An examination of those documents led the Commission official responsible for the project to find that there had been serious negligence in the keeping of the project's accounts. (*) In its debit note, (*) the Fund established a negative balance of BFR 5400000, which was tantamount to requiring the entire advance to be reimbursed.

61.It is impossible to establish on the basis of any document submitted to the Court that the Member State concerned was given an opportunity to comment on the total withdrawal of Community assistance. Moreover, the Ministry for the Walloon Region made detailed comments on the project after the decision was notified. (*)

62.Project 870295 B2 is the subject of an application for assistance (*) approved for a sum of BFR 6305005 by Commission Decision No C 870670 of 31 March 1987. (*) An advance of BFR 3152502 was paid. According to the organizer, the balance of the Community assistance came to BFR1535019. (*) The Fund reduced that sum to BFR 1331015 (*) without giving any reasons.

63.There is nothing in the case-file to suggest that the Member State concerned was able to comment prior to the decision to reduce the assistance. (*)

64.Lastly, the application for assistance registered under No 870296 B2 (*) was approved for the amount of BFR 5707392 by Commission Decision No C 87/0670 on 31 March 1987. (*) An advance of BFR2853696 was paid. (*) The organizer assessed the balance payable by the Fund at BFR 1880263. (*) The Fund set the sum at BFR1667815, (*) on the ground that the project did not comply with the requirement of a minimum of 200 hours' training.

65.In this case as well, none of the documents in the case-file shows that the Member State was consulted before the decision to reduce the assistance was taken. (*)

66.To summarize, the decision of 18 October 1990, in so far as it relates to Projects 850186 B6, 870295 B2 and 870296 B2, should be annulled as it infringes Article 6(1) of Council Regulation No 2950/83.

67.I would point out ex abundanti cautela that the Court takes the view that, unlike Commission decisions on initial applications for assistance, ‘a decision to reduce assistance must clearly show the grounds for reducing the assistance in relation to the amount initially approved’. (*)

68.However, on the face of the documents produced, the reasons for the reductions made in respect of Projects 870295 B2 and 870296 B2 were never brought to the notice of the Member State and the organizers concerned.

69.It follows that, so far as those two projects are concerned, the decision of 18 October 1990 is also void for lack of a statement of reasons.

70.Returning to Project 850077 B4, I now propose to consider whether the reductions made were justified.

71.The relevant application for assistance (74) was approved by the Fund by two decisions, one of 19 June 1985 (BFR 7337241) and the other of 23 December 1985 (BFR 7000000). (75) Community assistance was to have been, according to the applicant, in the sum of BFR 13758080. Taking the advance of BFR 7168620 into account, the balance should have been BFR 6589460.

72.The Fund — implicitly allowing expenditure of BFR 5144154 (76) — requested the applicant to repay the BFR 2024466 overpayment on account of the ‘reduction in the number of persons who were not long-term unemployed’. (77)

73.The Commission maintains that the operation could only involve long-term unemployed persons of at least 25 years of age, whilst the applicant association claims that the application related to training of the long-term unemployed whatever their age.

74.It is sufficient to note that the application for assistance submitted by Sart-Tilman stated expressly in paragraph 5 that ‘the operation relates to persons of 25 and over’; the box for persons under 25 was not ticked. (78)

75.The Fund was therefore right — and expressly stated the reasons for its decision — to refuse financing in respect of persons who did not satisfy the conditions for approval, namely 12 trainees. (79)

76.The application for annulment submitted in that connection by Sart-Tilman should therefore be declared unfounded.

77.Accordingly, I propose that the Court should:

I.With regard to Case C-334/91,

(1)annul the contested decision;

(2)order the Commission to pay the costs;

II.With regard to Case C-199/91,

(1)declare the action inadmissible in so far as it seeks

—an order that the Commission should pay the sum of BFR 21707839;

—the annulment of the decision taken in connection with Project 843643 B6;

(2)annul the contested decision in so far as it relates to Projects 850186 B6, 870295 B2 and 870296 B2;

(3)dismiss the remainder of the application;

(4)order each party to pay one-half of the costs.

* * *

(*1) Originai language: French.

(1) Decision on the tasks of the European Social Fund (OJ 1983 L 289, p. 38).

(2) Regulation on the implementation of Decision 83/516/EEC on the tasks of the European Social Fund (OJ 1983 L 289, p.l).

(3) Decision on the management of the European Social Fund (OJ 1983 L377, p.1).

(4) Cases C-157/90 Infortec v Commission [1992] ECR I-3525, C-181/90 Consorgan v Commission [1992] ECR I-3557 and C-189/90 Cipeke v Commission [1992] ECR I-3573. See, in particular, paragraphs 3 to 21 of my Opinion.

(5) First paragraph of Article 124 of the Treaty.

(6) Decision 83/516/EEC, Article 1(2).

(7) Ibid., Article 3(1) and (2).

(8) Regulation No 2950/83, Article 5(1) and (2).

(9) Ibid., Article 5(4).

(10) Ibid., Article 7.

(11) Ibid., Article 6(1).

(12) Ibid., Article 6(2).

(13) Annex 2 to the application.

(14) Annex 3.

(15) Annex 7.

(16) Annex 8.

(17) Annex 9.

(18) Annex 1.2.

(19) Annexes 1.1 and 1.2.

(20) Annex 12.

(21) Annex 13.

(22) Letters from the Fund giving notice of decisions of that sort are generally drafted in such terms. See paragraph 43 of my Opinion of 25 February 1992 in Cases C-157/90 Infortec, C-181/90 Consorgan and C-189/90 Cipeke, cited above.

(23) See the judgment in Case 60/81 IBM v Commission [1981] ECR 2639, paragraphs 8 and 9.

(24) EISS v Commission [1984] ECR 1341, given under the 1977 rules.

(25) Paragraph 15.

(26) Fund assistance may not, save in exceptional cases, exceed the amount of the financial contribution of the Member State concerned (Article 5 of Decision 83/516/EEC).

(27) See Article 2(2) of Decision 83/516/EEC; see also the judgment in Case C-291/89 Interhotel v Commission [1991] ECR I-2257, paragraph 16.

(28) Article 6(2) of Regulation No 2950/83.

(29) See paragraph 13 of my Opinion in the Infortec, Consorgan and Cipeke cases, cited above.

(30) See the annex to Decision 83/516/EEC, statement ad Article 5(1).

(31) See paragraphs 81 and 82 of my Opinion in the Infortec, Consorgan and Cipeke cases.

(32) See Interhotel, cited above, paragraph 17. Emphasis added.

(33) See, for example, the request for information dated 20 November 1987 (Annex 3 to the Commission's defence) which does not relate to the reduction of assistance.

(34) Case 200/89 Funoc v Commission [1990] ECR I-3669, paragraph 6 of the Opinion.

(35) Emphasis added.

(36) Approval was granted for BFR 27381000. The balance claimed was BFR 14448667, the corrected balance was BFR 1833588. In view of the advance already paid, BFR 6380712 had to be repaid to the Commission (see the Commission's letter of 6 November 1991 —Annex 1.2 to the application).

(37) Annex to the application.

(38) Annex 13 to the application.

(39) The Belgian Government did not reply to a question from the Court as to whether it had been consulted in accordance with Article 6(1) of Regulation No 2950/83.

(40) Interhotel, cited above, paragraph 14.

(41) The applications are listed on p. 2 of the application.

(42) Annex to the defence, Doc. 7.6.

(43) Ibid., Doc. 7.7.

(44) Pp. 104 and 25 of the annex to the application.

(45) P. 20 of the annex to the application.

(46) Application for assistance, annex to the application, p. 29.

(47) Decision of approval, Doc. 1.1 appended to the defence.

(48) Annex to the application, p. 24.

(49) P. 8.

(50) See application, p. 7.

(51) See, for example, Annex 1 to the Commission's rejoinder.

(52) Furthermore, the balance drawn up on 30 October 1989 (Doc. 7,7 appended to the defence) in no way establishes that the Member State had been consulted.

(53) Doc. 7.1 appended to the defence.

(54) Ibid., Docs 3.9 and 7.2.

(55) See the Commission's letter of 12 January 1987 and the Belgian Ministry's letter of 11 March 1987 appended to the rejoinder (see also Annexes 3.6 and 3.7 to the defence).

(56) Doc. 2.1 appended to the defence.

(57) Letter of 25 September 1988, Doc. 2.2 appended to the defence.

(58) Doc. 2.4 appended to the defence and p. 111 of the annex to the application.

(59) Project memorandum dated 6 November 1989, Doc. 2.5 appended to the defence.

(60) Pp.22 and 115 of the annex to the application. Reasons given: ‘Replies received are insufficient. Further information requested on 23 September 1988’.

(61) P. 110 of the annex to the application.

(62) Annex to the application, p. 53.

(63) Doc. 5 appended to the defence.

(64) Annex 3 to the reply.

(65) Application, p. 2, and annex to the application, p. 25.

(66) In its letter of 3 June 1988 (Doc. 7.2 appended to the defence) the Fund does not take a view on the project: at that date, the payment claim had not yet been received.

(67) Annex to the application, p. 72.

(68) Doc. 7 appended to the defence.

(69) See Annex 4 to the reply.

(70) Application, p. 8, Doc. 6 appended to the defence and Annex 2 to the Commission's reply to the Court's questions.

(71) Annex to the application, p. 25.

(72) In its letter of 30 June 1988 (Document 7.2 appended to the defence) the Fund does not take a view on the project at that date, the payment claim had not yet been received.

(73) Paragraph 18 of the judgment in Cipeke, cited above.

(74) Annex to the application, p. 43, and Doc. 3.1 appended to the defence.

(75) See Doc. 3.4 appended to the defence.

(76) See Doc. 3.11 appended to the defence.

(77) P. 21 of the annex to the application.

(78) See footnote 69 above.

(79) See the project memorandum of 17 September 1991, Doc. 3.11 appended to the defence.