C-200/89
ECLI:EU:C:1990:292
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OPINION OF MR TESAURO — CASE C-200/89
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 10 July 1990 *
Mr President, The project was approved for the amount Members of the Court, applied for — BFR 16 500 000 — by Commission Decision C(84) 1076 of 23 July 1984.
1. The purpose of the present action, brought by the Association pour le dévelop On 6 June 1988 Funoc received a registered pement à Charleroi d'actions collectives de letter from the Ministry of Labour and formation pour l'université ouverte (Funoc) Employment which forwarded a debit note is to obtain, first, a declaration that the from the Commission together with an Commission's decision notified to the explanatory letter. The Commission applicant by letter of 21 April 1989 is void requested the reimbursement of the in so far as it requests the applicant to BFR 9 900 000 advanced on the ground reimburse BFR 6 579 334 and refuses to pay that, according to the report which Funoc the balance (BFR 6 600 000) of the financial had annexed to its request for payment of assistance awarded from the European the balance, Funoc had decided to modify Social Fund and, secondly, compensation its project as early as January 1984 without for the damage suffered by Funoc as a informing the competent departments of the consequence of the abovementioned Fund, and that the modification was in decision. conflict with the initial structure of the project.
2. The facts of the case may be summarized Following correspondence between the as follows: Belgian authorities and the Commission, the latter, by letter of 21 April 1989, reduced its demand for reimbursement to BFR 6 579 334, thereby agreeing, in practice, to pay for only the first training In September 1983 Funoc submitted to the course (1984) out of the Fund. Commission an application for assistance for an innovatory project within the meaning of Article 3(2) of Council Decision 83/516/EEC of 17 October 1983 on the 3. Funoc challenges that decision and has l tasks of the European Social Fund, spread put forward four submissions. over three years (1984, 1985 and 1986) with the aim of providing training in new infor mation technology for young people with limited qualifications in the Charleroi area. The applicant maintains, first, that the * Original language: Italian. decision is void because it was not adopted 1 — OJ 1983 L 289, p. 38. by the competent body.
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FUNOC v COMMISSION
Funoc claims that the decision was in fact The letter of 27 October 1988 refers to a adopted by Mr Vermelho, a Head of 'solution acceptable de ce dossier, en tenant Division in Directorate-General V, the compte éventuellement de la partie qui Directorate-General for Employment, Social justifie un caractère novateur dans ce Affairs and Education, who signed the programme' (an acceptable solution to this contested letter of 21 April 1989 even problem, possibly taking account of the part though he had no specific authorization to which represents the innovatory nature of do so, whereas the previous letters, signed this programme) and the subsequent letter by the Director-General, took, in the of 22 March 1989 (Annex 14b to the applicant's opinion, a different approach application) refers to a 'solution ... qui which was more understanding and concil tiendrait compte de la partie qui pourrait iatory. justifier le caractère novateur dans ce programme réalisé' (solution ... taking account of the part which might represent 4. In that regard, it must be pointed out the innovatory nature of the programme first of all that, in accordance with the carried out). internal rules governing the implementation of the general budget of the European Consequently, the documents produced do Communities, it is Directorate-General V not disclose any factor of such a kind as to which is responsible for managing the type suggest that, in the present case, the of expenditure in question. Community administration has failed to comply with the applicable rules.
Consideration of the letter at issue discloses In my opinion, the first submission is no factor of such a kind as to suggest that therefore unfounded. Mr Vermelho acted on his own initiative, thereby failing to observe the internal rules. 5. The second submission is that the Community administration has infringed the rules governing the Fund. Moreover, the previous letter, signed by the Director-General, sent on 27 October 1988 The applicant claims that the Commission (Annex 13b to the application) to the merely presented the Belgian Labour Belgian Minister for Social Affairs, Administration with a debit note, which was contained the same assessment as was subsequently transmitted to Funoc in June subsequently expressed in Mr Vermelho's 1988 (Annex 7 to the application), that is to letter of 21 April 1988. The letter of 27 say an implementing measure for a decision October 1988 stated that: 'le fond du which had already been taken, which is an problème est qu'il ne s'agit malheure infringement of Article 6(1) of Regulation usement pas d'un projet novateur au sens de No 2950/83, 2 which requires the la réglementation du Fonds' (the nub of the Commission to give the Member State problem is that it is unfortunately not an concerned the opportunity to make its innovatory project within the meaning of comments before a decision is adopted to the Fund's rules). suspend, reduce or withdraw assistance.
6. With regard to that submission, however, Nor do the solutions envisaged in the earlier it must be pointed out that the contested letters from the same Director-General measure is not the letter transmitted to the appear dissimilar to the decision adopted applicant in June 1988, but rather the subsequently, namely to pay from the Fund subsequent decision referred to in the letter only the expenditure incurred by Funoc in the first year. 2 — OJ 1983 L 289, p. 1.
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OPINION OF MR TESAURO — CASE C-200/89
of 21 April 1989. That decision was unques project as implemented which, according to tionably adopted after much correspondence the applicant, remained a single operation between the Belgian authorities and the with innovatory characteristics, intended to Commission (see the letter from the verify new work theories. Minister for Labour and Employment of 30 June 1988, Annex 9 to the application; the Commission's letter of 16 September 1988, Annex 12; Minister Busquin's letter of 16 8. At this point it should be stated that the September 1988, Annex 13a; the training project proposed by Funoc in Commission's letter of 27 October 1988, September 1983 envisaged, according to the Annex 13b; Minister Maystadt's letter of 31 applicant's own description in the January 1989, Annex 14a; the Commission's application form for assistance, the creation letter of 22 March 1989, Annex 14b; and of a scientific production cooperative to precisely as a result of that correspondence carry out research and survey work of the Commission was persuaded to amend, general interest, in other words, an obser albeit partly, its prior decision, which is not vatory of regional economic, social and at issue here. educational data able to satisfy the needs and enquiries of members of the community.
Furthermore, the provision relied on by the applicant does not lay down a formal For that purpose, 90 young people with consultation procedure but requires only limited qualifications were to be given that the authorities of the Member State appropriate training in research methods concerned have the opportunity of making and techniques, with intensive use of data their comments before a final decision is processing. adopted, which is precisely what happened in the present case. According to additional information supplied to the Commission on 15 June 1984, the project was to comprise three Therefore, the second submission also separate stages. appears unfounded.
In the first stage (1984 — 600 hours), 7. Funoc further claims that when the participants would acquire the skills Commission made its own appraisal of required for the collection and basic whether the project as implemented pre-processing of data and for the use of conformed to the original project, it microcomputers. committed a manifest error of appraisal and incorrectly applied the rules which govern the Fund. In the second stage (1985 — 200 hours), the same participants should have become oper ational and started to apply the methods and techniques learned previously so that According to the applicant, the modifi they could then carry out, in the third stage, cations made to the programme as (1986 — 200 hours) survey and research previously notified proved to be necessary in work of interest to the community and reply order to ensure the very success of the to enquiries from members of the project and did not substantially alter the community.
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FUNOC v COMMISSION
9. However, it is clear from the final report, provide assistance and the consequent late drawn up by the applicant itself and sent to payment of the 'advances' are not entirely the Commission in June 1987, that the convincing. project was implemented in a way which was appreciably different from what had been planned, comprising not a single training course for 90 young people spread 11. While it was waiting for the decision on over three years, but rather three separate assistance from the Fund, Funoc could have one-year training courses each consisting of easily postponed the stan of the course for 1 000 hours, for three different groups of 30 several months and, in any event, it ought young people. Moreover, the planned to have informed the Commission in good cooperative was not, in the end, set up. time of its intention to modify the original project so as to verify that the proposed changes met the conditions laid down by the Community administration for the granting of assistance. 10. In my opinion, it is highly doubtful, to say the least, that that change is a purely formal modification, as Funoc claims.
However, it is evident that, by a letter sent on 15 June 1984 (see Annex 1 to the defence) following a meeting some days A transformation from a three-year training earlier, the applicant confirmed to the course of 1 000 hours for 90 young people Commission the details of the implemen with limited qualifications into three tation of the project as originally planned, separate one-year courses for groups of 30 whereas several months earlier (March young people is not a mere formal modifi 1984) the training course had already cation of an organizational nature. The commenced in the different format entire structure of the project is thereby described above. altered and the project's very chance of success may be reduced considerably because the different stages of the training follow on one another so quickly. Moreover, Funoc's claims that it had in fact taken steps to notify verbally, to officials of the Commission, the modifications made and that it received express approval, are also implausible. Those claims have in fact In that regard, the Commission's argument been expressly denied by the Community that the length of the course was an administration and are clearly at variance essential factor in the acceptance of the with the abovementioned letter of 15 June application for assistance is very persuasive. 1984.
On the other hand, the reasons put forward 12. Equally unconvincing is the applicant's by the applicant for finding itself obliged to further argument that a note drawn up by modify its own programme — by initially the Commission (see Annex 24 to the limiting the number of participants — as a application) shows that the Community result of the delay in taking the decision to administration acknowledges that modifi-
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OPINION OF MR TESAURO —CASE C-200/89
cations may be made to projects as orig improve the methods applied. Thus, only inally envisaged, since in that note the reci the intakes of young people were 'repe pients are requested to mention in the final titive', since there were three intakes instead report any modifications made during the of one. implementation of the project with regard to the objectives and methods mentioned in the application for assistance. 14. Those observations also appear to me to be inconclusive.
It is obvious that the assessment of the implementation of any innovatory project requires a certain flexibility and account It is true that continued, repeated verifi must be taken of the need to adapt the cation of a single work theory permits the original project in order to deal with any quality of the results obtained to be difficulties encountered. improved progressively on account of the experience acquired on each occasion; nevertheless, after the first experimental verification, the operation is no longer, in my view, truly innovatory and no longer However, that certainly does not mean that qualifies for assistance under the abovemen- the recipient is free to make substantive tioned provision. changes in the implementation of the programme envisaged, even before it has started and without any prior notification to the Commission. 15. As regards Funoc's claim that the condition of 'non-repetivity' does not appear anywhere in the legislation governing the management of the type of 13. It should be added that Funoc's operations in question, it is sufficient to application for assistance was submitted observe that that condition is implicit and is pursuant to Article 3(2) of Decision 83/516, derived from the very concept of an a provision which concerns innovatory 'innovatory project'. projects and that the repetitive nature of the project as implemented appears to be at variance with that provision. 16. In the light of the above it must, I think, be concluded that the Commission's decision that, since Funoc had substantially In that regard, the applicant submits that the modified the planned training programme, it operation carried out was not really repe had not used the sums applied for in titive taking into account the nature, essence accordance with the decision to grant and structure of the project, which consisted assistance and with the Community rules in a single exercise for the purpose of governing the Fund is not vitiated by any verifying a work theory and a method. manifest error of appraisal or error of law.
17. In the alternative, the applicant claims The applicant emphasizes that the training that the decision infringed the principle of was part of a single experimental process proportionality in so far as the Commission intended to progressively develop and penalized a procedural irregularity, namely
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FUNOC v COMMISSION
the failure to notify the modifications, by has not exceeded the limits of what is withdrawing the entire amount of the necessary to ensure the correct use of the assistance for the parts of the programme sums paid by the Fund. implemented during 1985 and 1986. According to the applicant, that is 18. Finally, with regard to the claim for particularly serious since that penalty compensation, it must be pointed out that jeopardizes Funoc's very survival. the Court has consistently held that the liability of the Community under the second In that regard, however, it must be pointed paragraph of Article 215 depends on the out that the prior decision to grant coincidence of a set of conditions as regards assistance was revoked not because of a the unlawfulness of the act alleged against mere 'procedural irregularity', but because it the institution, the fact of damage and the was found that the changes made by Funoc existence of a causal link between the to the original project meant that the wrongful act and the damage complained operation as implemented differed of. considerably from what was established in the decision of approval and therefore — at In the present case, as already stated, the least with regard to the second and third act of the Commission which allegedly stages — did not qualify for assistance caused the damage, does not appear to be under Article 3(2) of Decision 83/516 on unlawful. assistance for innovatory projects. Consequently, there is no need to consider Consequently, by deciding to withdraw the whether the other conditions laid down by assistance for the training courses carried the Court have been met and Funoc's claim out during 1985 and 1986, the Commission for compensation must also be rejected.
19. In view of the above considerations I propose that the Court reject the application and order the applicant to pay the costs.
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