C-143/95

* Original language: German. 1 — Socurte and Others ν Commission [1995] ECR II-503. 2 — OJ 1983 L 289, p. 38. 3 — OJ 1983 L 289, p. 1.

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OPINION OF MR LENZ — CASE C-143/95 Ρ

certain amount to that project. D AFSE 7. By letter of 24 April 1991, which was informed the applicants of that decision and received by its addressees on 30 April, notified them at the same time of the amount DAFSE informed the applicants that the of the contribution which the Fund was to Commission had ultimately specified that make in each case towards the cost of the the contribution by the Fund was to be in an projected operations. The advance provided amount lower than that originally pro­ 4 for was subsequently paid to the applicants. jected. DAFSE relied in that regard on a letter of 14 February 1991 from the Com­ mission to DAFSE, a copy of which it sent to the applicants at the same time. That brief letter stated that the Commission had exam­ ined the claim for payment of the balance and that, as a result, it had been decided that the final amount of the contribution was to be the sum in question. It further stated that a number of contracts and various inspec­ tions had been 'taken into account' in that connection.

5. After completion of the operations carried out pursuant to that project, the applicants submitted an application for payment of the balance of the Fund assistance. That payment was not made, however. Instead, by letter of 18 March 1991, D AFSE demanded, with ref­ 8. By letters to DAFSE of 14 May 1991 and erence to a decision of the Commission, the to the Commission of 17 May 1991, the repayment by the applicants of part of the applicants then asked to be sent certified advances already paid to them. copies of the Commission's original decision granting Fund assistance and of its decision relating to the final payment claim for the balance of the Fund's contribution.

11. The Court of First Instance ruled that the claim for annulment was admissible and In that letter, the Commission stated in par­ well founded. ticular that an inspection visit made to Stec between 26 and 29 July 1988 had revealed that certain expenditure had been insuffi­ ciently substantiated and that specific items had not been adequately evaluated. In the light of those deficiencies, the Commission 12. As regards the question of the admissi­ had therefore undertaken its own bility of the action, the Court of First reckonable-cost analysis, which had resulted Instance pointed out, first, that on 30 April in the reduction of the assistance originally 1991 the applicants had been in possession of fixed. the Commission's letter of 14 February 1991 and were 'thus aware both of the existence of a decision of the Commission reducing the Fund assistance and refusing to pay any fur­ ther balance and of the repercussions which that decision would have on them, as indi­ cated by the competent national body in those letters of 18 March and 24 April In that letter, the Commission stated that the 1991'. 6 However, that letter of 14 February national authorities had submitted their 1991 had contained merely an 'abstract and comments on that course of action. general statement of reasons', and had not stated the 'precise reasons for which that decision had been adopted'. O n receiving DAFSE's letter of 24 April 1991, the appli­ cants had immediately requested the Com­ mission and DAFSE to inform them of the precise reasons for that decision. They were 10. The undertakings concerned subse­ not informed of those reasons until 30 July quently brought proceedings by applications 1991, when DAFSE communicated to them lodged at the Registry of the Court of Jus­ the Commission's letter of 10 July 1991. It tice 5 on 10 October 1991. They applied inter was only then that the applicants had alia for annulment of the measure contained acquired sufficient knowledge of the reasons in the Commission's letter to DAFSE of for the Commission's decision, and only 10 July 1991. The Commission contended 'from that date that they could effectively that the proceedings should be dismissed as bring proceedings against that decision'. 7

13. As regards the merits of the application for annulment, the Court of First Instance 15. The Commission has appealed against held that the opportunity afforded to the rel­ that judgment. It is applying for an order evant Member State by Article 6(1) of Regu­ setting aside the judgment and requiring the lation N o 2950/83 to comment before a definitive decision is taken by the Commis­ respondents to the appeal to pay the costs. sion to reduce assistance from the Fund, whether as regards the principle of the reduction or as regards its precise amount, is 'an essential procedural requirement'. 8 Next, the Court of First Instance examined the documents submitted by the Commission in 16. The applicants in the original proceed­ support of its contentions. Those documents ings contend that the appeal should be dis­ concerned three inspections carried out by missed, that the contested judgment should the Commission during the periods from be upheld and that the Commission should 27 October to 3 November 1986, 28 Septem­ be ordered to pay the costs. ber to 2 October 1987 and 26 to 29 July 1988, together with two meetings in June 1988 between the Commission's representa­ tives and the Portuguese authorities. The Court of First Instance concluded that it could not be inferred from those documents Β — Opinion that the Commission had observed its obli­ gation under Article 6(1) of Regulation N o 2950/83.

Preliminary observation

Consequently, the Court of First Instance declared void the Commission's decision 17. According to its wording, the Commis­ reducing the amount of the Fund's contribu­ sion's appeal relates to the whole of the tion. judgment of the Court of First Instance. However, it is apparent from the notice of appeal that the Commission intended to con­ 8 — Ibid. (footnote 1), paragraph 65. test the judgment only in so far as it found in

20. This accords with the consistent case-law of the Court of First Instance on this p o i n t , 1 0 which is not called in question by 18. The Commission criticizes the contested the Commission. Similarly, the Commission judgment in two respects. First, the Court of — rightly — does not contest the finding of First Instance erred in finding that the period the Court of First Instance that the appli­ for bringing proceedings for annulment of cants in the proceedings before it requested the Commission's decision did not start to the full text of the decision within a reason­ run until 30 July 1991. The decision was able period. adopted on 14 February 1991. That decision was notified to the undertakings concerned on 30 April 1991, as a result of which the time for bringing proceedings commenced to run. Second, the Court of First Instance 21. However, the Commission argues that wrongly held that the Commission had the case-law referred to is not applicable in failed to fulfil its obligation under Article the present case, since it relates only to cases 6(1) of Regulation N o 2950/83 to give the in which there has been a failure to publish relevant Member State an opportunity to or notify the decision. In the case which the comment. Court of First Instance was called upon to decide, however, the decision of 14 February was notified to the undertakings concerned on 30 April 1991.

The admissibility of the action

question has been neither published nor the period for the institution of proceedings notified. 'Notification', within the meaning did not start to run until the complete text of of the fifth paragraph of Article 173 of the the decision, which had been requested EC Treaty, encompasses 'publication' within within a reasonable time, was communicated 1 the meaning of Article 191 of the Treaty. 1It to them. is true that, unlike the French and English versions, the German version of the fifth paragraph of Article 173 is formulated in somewhat misleading terms. However, only this interpretation accords with the sense and purpose of the case-law referred to. The 24. Furthermore, the argument advanced by point in time at which the period laid down the Commission would, if accepted, produce in Article 173 for the institution of proceed­ improper results. It would mean that, in ings starts to run can only be deferred where order to safeguard their rights, undertakings the decision has been neither published nor finding themselves in the situation facing the formally notified to the person concerned. applicants would have to bring proceedings Only in such circumstances can there be any immediately. It is clear, however, that the doubt on the part of the person concerned as Commission's decision, in the form of the to the content and grounds of the decision, letter of 14 February 1991, did not in any such as to justify special protection. way fulfil the requirements laid down by Article 190 of the E C Treaty regarding the provision of a statement of reasons for legal acts, and should therefore have been set aside as a matter of course. Consequently, the Commission's argument would result in an increase in avoidable litigation.

opportunity to comment constitutes an 29. The Court of First Instance reached the essential procedural requirement. The Court same conclusion in relation to two meetings of First Instance ruled, with reference to the in June 1988, on which the Commission had 12 relevant case-law, that the applicants were sought to rely. The Commission had entitled to plead infringement of those rules. referred, by way of evidence in respect of the first of those meetings, to the report of the inspection carried out between 26 and 29 July 1988, from which — as stated above — the Court of First Instance did not con­ sider that it could be inferred that the Com­ mission had given the relevant Member State 27. The Court of First Instance proceeded to an opportunity to comment. As regards the state that the obligation to give the relevant second meeting, the Court referred to a note Member State an opportunity to comment drawn up after that meeting and sent by the must be fulfilled before the decision in ques­ Commission to the Portuguese authorities, tion is adopted, and that this must be estab­ which stated that, in the Commission's view, lished 'with a sufficient degree of certainty 'on-the-spot checks and/or answers to the and clarity', which precludes 'any proof by additional questions' were called for. The presumption'. 1 3 Court of First Instance rejected the conten­ tion that the Commission could not already at that date have adopted a decision on which the Portuguese authorities could have submitted their comments. 15 The Court's view in that regard was further strengthened by a note of 19 October 1988 from the com­ 28. As regards the report submitted by the petent Member of the Commission which Commission concerning the inspection car­ stated that, at the meeting in June 1988, the ried out between 27 October and 3 Novem­ Commission had submitted to the Portu­ ber 1986, the Court of First Instance found guese authorities certain proposals concern­ that it did not mention any comments by the ing 'comparable projects'. The Court Portuguese authorities. The same applied to rejected the contention that it had not been the report of the inspection carried out proven that those proposals had also been between 28 September and 2 October 1987. submitted in respect of the matter under It is true that the report concerning the consideration. 1 6 inspection carried, out between 26 and 29 July 1988 indicated that the Commission was contemplating reducing the Fund's con­ tribution and, at the same time, refraining from requiring the repayment of sums already paid; however, that document does not show that the Portuguese authorities 30. O n that basis, the Court of First were given an opportunity to comment in Instance concluded that the Commission that regard. 14 could not be considered to have fulfilled its obligation under Article 6(1) of Regulation

N o 2950/83 to give the relevant Member 33. The Commission does not contest the State an opportunity to comment. construction placed on the individual docu­ ments by the Court of First Instance. In its view, however, the Court paid insufficient heed to the context into which those docu­ ments fit. Consequently, the point at issue relates basically to the evaluation of evi­ dence, which in my view cannot form the subject-matter of an appeal — the latter 31. In opposition to this, the Commission being restricted, as is well known, to ques­ pleads that the Portuguese authorities had tions of law. The position could only be oth­ knowledge of, and participated in, the erwise if the Court of First Instance had inspections. It argues that they were there­ committed an error of law in its evaluation fore aware of the Commission's reservations, of the evidence. which were discussed during the course of those inspections. The solution ultimately chosen had already been discussed at a meet­ ing between a Member of the Commission and the competent Portuguese Minister, and had again been proposed by the Commission in the course of the discussions in June 1988. There had been a continuous exchange of information, enabling the Portuguese authorities to have prior knowledge of, and to comment on, the basic elements of the 34. The Commission appears to regard as decision subsequently adopted. such an error of law the fact that the Court of First Instance required explicit proof of compliance with the obligation to provide an opportunity to comment. I cannot agree. The close cooperation between the Commis­ sion and the administrative authorities of the relevant Member State, on which the Com­ mission places such weight, is inherent in the 32. In my view, this ground of appeal cannot sphere under consideration here. If that in succeed. The Commission complains, in itself were to be regarded as constituting suf­ essence, that the Court of First Instance ficient proof of the provision by the Com­ erred in its interpretation of the evidence mission, prior to the adoption of its deci­ submitted by it. As it correctly states in its sions, of an opportunity for the relevant reply, the issue in the present case is, in Member State to submit its comments, that essence, whether the content of the evidence would not accord with the nature of the adduced by the Commission in the proceed­ obligation laid down in Article 6(1) of Regu­ ings before the Court of First Instance was lation N o 2950/83, constituting as it does an sufficiently certain to justify a finding that essential procedural requirement. As the the Commission fulfilled its obligation to applicants have rightly stated, the Commis­ provide an opportunity for the submission sion's case in this regard is in essence limited of comments. The Court of First Instance to an assertion that it fulfilled that obliga­ answered that question in the negative. I am tion, without its having submitted any con­ unable to regard that conclusion as errone­ crete proof to that effect. That cannot be ous. regarded as sufficient.

C — Conclusion

38. I therefore p r o p o s e that the appeal be dismissed and t h a t the C o m m i s s i o n be o r d e r e d t o p a y the costs.

17 — Case C-199/91 Foyer Culturel du Sart-Tüman ν Commis­ 18 — Ibid. (footnote 17), paragraph 32. sion [1993] ECR I-2667.

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