C-308/95

* Original language: Italian. 2 — Projects Nos 80.07.03.002 and 84.07.03.004, mentioned 1 — EDRG infrastructure projects Nos 80.07.03.002 (Veendam- above. Musselkanaal), 84.07.03.001 (Rijksweg 7), 84.07.03.003 3 — In the second application the Netherlands Government (S 13 road project), 84.07.03.004 (Weg Veendam), sought joinder, for the purposes of the written and oral 85.07.04.005 (five projects in Drentse), 87.07.04.001 procedures and final judgment, of the two cases on which I (Zwart 6 Zuid road project), 87.07.04.004 (Sneek ring am today giving my Opinion on the ground that they are road) and 88.07.04.002 (Gelpenberg project). connected

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OPINION OF M R LA PERGOLA — CASES C-308/95 AND C-84/96

4 — See, in so far as they are relevant to this Opinion, Council Regulation (EEC) N o 2081/93 of 20 July 1993 amending Council Regulation (EEC) N o 2052/88 of 24 June 1988 on '1. This Regulation shall not affect multi- the tasks o f the Structural Funds and their effectiveness and annual operations, including the adjust­ on coordination of their activities between themselves and with the operations of the European Investment Bank and ment of Community support frameworks the other existing financial instruments (OJ 1993 L 193, p. 5, hereinafter 'Regulation N o 2081/93') and Council and forms of assistance, approved by the Regulation (EEC) N o 2081/93 amending Council Regula­ Council or by the Commission on the basis tion (EEC) N o 4254/88 laying down provisions for imple­ menting Regulation (EEC) N o 2052/88 as regards the European Regional Development Fund (OJ 1993 L 193, p.34, hereinafter 'Regulation N o 2083/93'). 5 — As regards projects where the decision on Structural Fund 6 — According to the Commission, the phenomenon described is assistance was granted after 1 January 1989, Article 20 of attributable, in the case of projects financed by the Council Regulation (EEC) N o 4253/88 of 19 December European Regional Development Fund ('ERDF'), to the 1988 laying down provisions for implementing Regulation very nature of the projects (concerning, in particular, (EEC) N o 2052/88 as regards coordination of the activities productive investments or infrastructure projects), to the of the different Structural Funds between themselves and need for the final beneficiaries to prepare adequate and with the operations of the European Investment Bank and complete documentation and for the competent national the other existing financial instruments, which entered into authorities to carry out the requisite financial checks to force on 1 January 1989, states as a matter of principle that ensure that the conditions for the grant of Community budgetary commitments made by the Commission are to be assistance are met, to the inevitable substantive and valid for a period, depending on the nature of the operations administrative delays, as well as to failures by the Member and on the specific conditions for their implementation. See States to keep the Commission informed of progress in also Article 1 of the Financial Regulation of 21 December implementing the projects. 1977 applicable to the general budget of the European 7 — See Article 2 of the Financial Regulation (cited above at Communities (OJ 1977 L 356, p. 1), as amended by footnote 5) which, as amended by Regulation N o 610/90 Article 1(1) of Council Regulation (ECSC, EEC, Euratom) cited above, provides: 'The budget appropriations must be N o 2049/88 of 24 June 1988 (OJ 1988 L 185, p. 3) and by used in accordance with the principles of sound financial Article 1(4) of Council Regulation (ECSC, EEC, Euratom) management, and in particular those of economy and cost- N o 610/90 of 13 March 1990 (OJ 1990 L 70, p. 1). effectiveness (...).'

3. The provisions referred to in Article 3(4) and (5) [those which regulate specifically the action of each Structural Fund and those which are necessary with a view to the coordination between, on the one hand, the interventions of the various Structural Funds and, on the other hand, between the intervention of those Funds, the EIB and 5. By a letter dated 23 February 1995 Mr the other existing financial instruments] Garcia Lombardero, head of unit in DG shall lay down specific transitional provi- XVI of the Commission (Regional Policy sions relating to the implementation of this and Cohesion), informed the Netherlands Article, including provisions to ensure that Permanent Representation with the Eur- aid to Member States is not interrupted opean Union that there was a balance pending the establishment of the plans and outstanding in respect of budgetary com- operational programmes in accordance mitments on 18 projects co-financed by the with the new system and that the grant of ERDF prior to 1 January 1989, and also assistance for projects granted assistance drew the attention of the Netherlands before 1 January 1989 shall be finally authorities to Article 12. Mr Garcia Lom- concluded no later than 30 September bardero is the official authorised by the 1995.' Commission, in accordance with the rules on delegation in financial matters, to pay ERDF assistance and to effect the credit appropriations in that connection. By a letter dated 21 March 1995 the Nether- lands Ministry of Economic Affairs (the Effect was given to Article 15(3) aforemen- 'Ministry') replied that they would be tioned of Regulation No 2052/88 ('Arti- submitting a final statement on ten projects cle 15(3)'), specifically as regards the by 30 September 1995. With regard to the ERDF projects, by means of Article 12 of other projects it said that, for various

reasons, it was not possible for the time Commission requests for final payment in being to submit any such statement. respect of five projects, 9 on 27 July 1995 in respect of two projects and on 14 August 1995 in respect of the other one. Debit notes concerning five of those projects, 10 together with a request to pay the amounts indicated by the Commission by 31 August 1995, were subsequently issued to the Netherlands authorities which received 6. By letter dated 7 April 1995 Mr García them on 29 June 1995. 11 Lombardero informed the Netherlands Ministry of Economic Affairs that, since it was not possible to alter the 31 March 1995 date mentioned in Article 12 of Regulation No 4254/88 for the submission of requests for final payment, files pending would be closed on the basis of documents reaching the Commission before 1 April 1995. 8. In the letter of 28 July 1995 the Com- missioner informed the State Secretary for Economic Affairs that she had examined afresh the problem set out in earlier corre- spondence and had also taken into account the additional information furnished by the Netherlands authorities. Nevertheless, the 7. By a letter to the Ministry dated 28 April Commissioner was compelled to conclude: 1995 (amended by facsimile dated 4 May 'In all cases (...) I am obliged to point out to 1995) Mr García Lombardero listed eight you that a fresh examination by myself projects in respect of which the amounts of confirms that these projects must in fact be ERDF assistance paid would have to be closed on the basis of the most recent reimbursed. 8For its part the Netherlands requests for payment in the Commission's set out its position, in particular as regards possession on 31 March 1995. The Com- the interpretation of Article 12, at the same mission is not authorised to close projects time furnishing additional information con- on the basis of requests for payment cerning certain of the projects in question received after that date' (my translation). in letters dated 19 May and 7, 11, 19 and The Commissioner also stated that four of 20 July 1995 and was able to put its point the projects, which were either subject to of view at two meetings, the first of which suspension for judicial reasons or in respect was held between the State Secretary for of which the Commission had already, Economic Affairs and the Commissioner, before entry into force of Article 12, Dr Wulf-Mathies. On 1 June 1995 the Netherlands authorities lodged with the 9 — That is to say projects Nos 80.07.03.002, 84.07.03.004, 87.07.04.001, 87.07.04.004 and 88.07.04.002. 8 — That is to say ERDF projects Nos 76.07.04.001 (S23 road 10 — That is to say projects Nos 84.07.03.003, 85.07.04.005, project), 87.07.03.001 (Zuiderbrug Venlo) and 87.07.04.001, 87.07.04.004 and 88.07.04.002. 88.07.04.004 (A2 — Maastricht Airport), as well as the 11 — As regards the other three projects mentioned in the abovementioned projects Nos 84.07.03.003, 85.07.04.005, abovementioned letter of 28 April 1995 from Mr García 87.07.04.001, 87.07.04.004 and 88.07.04.002 (see footnote Lombardero to the Ministry, see footnote 12 below and 1 above). relevant section of text.

Admissibility of the first action (Case 10. As far as projects Nos 80.07.03.002 C-308/95) and 84.07.03.004 are concerned, the Neth- erlands authorities on 1 June 1995 submit- ted to the Commission the requests for payment of the final balance (see para- 11. As I have already stated (paragraph 1), graphs 2 and 7 above). On 15 January the Commission has raised an objection of 1996 the Commission sent to the Nether- inadmissibility against the action brought lands Ministry of Economic Affairs a debit by the Netherlands for annulment of the note in the amount of NLG 1 364 180 in letter of 28 July 1995. The Commission respect of ERDF project No 84.07.03.004. states in the ancillary application that the In his letters of 16 February 1996 Mr document in question, which is limited to García Lombardero, referring to his earlier the eight projects at issue, is merely con­ letters of 23 February and 7 April 1995 in firmatory of the letter of 7 April 1995 from which he made clear the Commission's Mr García Lombardero. That letter was intention to close ERDF projects Nos not challenged by the applicant within the 80.07.03.002 and 84.07.03.004 on the period provided for in Article 173 of the basis of information available to it prior Treaty. The Commission relies on the Court's case-law, 14 to support its argument that to declare the action in Case C-308/95 12 — Those are abovementioned projects Nos 76.07.04.001, admissible would be tantamount to allow- 87.07.03.001 and 88.07.04.004 (see footnote 8 above), as well as project No 86.07.03.002 (Maastricht Airport). ing the Netherlands to circumvent the time- Following a written reminder by the Netherlands autho- rities dated 31 July 1995, the Commission confirmed by telephone that an extension had also been granted for project No 88.07.03.001 (Oosterluis). 14 — Judgments in Case 26/76 Metro v Commission [1977] 13 — As the Commission informed the Ministry in a letter of ECR 1875 and in Joined Cases 166/86 and 220/86 Irish 25 October 1995 signed by Mr García Lombardero. Cement v Commission [1988] ECR 6473.

limit for challenging the initial decision. constitute an actionable decision for the Moreover, annulment of the letter of purpose of annulment proceedings, rather 28 July 1995 would be of no interest to than the merely confirmatory nature of the the applicant State. Notwithstanding the letter of 28 July 1995 (ancillary argument). judgment of the Court, the initial decision In fact, it is submitted, under the principle would in fact continue to subsist (in of legal certainty such actions may be addition to the individual decisions brought only in respect of acts expressly adopted under it). Nor is the confirmatory and specifically provided for in the Com- nature of the letter of 28 July 1995 altered munity legal order as regards the institution by the fact that the contested act, in which competent to adopt them, the procedure for the Commissioner replied to a letter from their adoption, the conditions concerning the Secretary of State, was signed by a validity and legal consequences. In the person other than the person issuing the context, the Commission adds, of the initial decision. Finally, the Commission administrative steps which it takes in order submits that, contrary to the holding by the to implement the budget only orders for Court of First Instance in its recent judg- payment of expenses and debit notes issued ment in IPK-München, 15 a letter, such as may form the subject-matter of the pro- that challenged in these proceedings by the ceedings provided for in Article 173 of the Netherlands, whose author writes to con- Treaty. Far from constituting the mere firm the contents of an earlier letter, even if implementation of previous decisions, indi- after a re-examination of the situation of vidual measures of that kind are said to the addressee of the previous act, is not entail definitive legal effects for the persons essentially different from a confirmatory concerned. However, the act challenged in letter tout court: the formulation of the Case C-308/95 forms part of the overall document in one way or another could in preparatory activity by the Commission in fact be dictated by mere considerations of the area concerned. Not only, the Commis- courtesy, without there being any implica- sion contends, is there no legal basis tion that the situation has in fact been the whatsoever for classifying such an act as a subject of a fresh appraisal. decision legitimately adopted by it, but the act itself produces, as far as the Nether- lands are concerned, no legal effect beyond that which directly stems from Article 12 because its sole purport is to confirm the Commission's interpretation of that provi- sion. On that reasoning, between Article 12 and the decisions closing the projects, which give concrete effect to that provision in individual cases, there could have been 12. Arguments of this intent are taken up no supervening decisions by the Commis- and developed by the Commission in the sion. Furthermore, the Commission goes on reply and rejoinder. According to the Com- to add, the letter of 28 July 1995 dates mission, the inadmissibility of the first from the period between notification of the action results from the fact that the letter debit notes for five projects and adoption of of 28 July 1995 does not in any event

13. Yet the arguments advanced by the Commission, initially in the ancillary claim and then in the subsequent defence plead- ings, in support of its claim that the action in Case C-308/95 is inadmissible are hard to reconcile. At first the Commission iden- tified the actionable decision as being the letter of 7 April 1995 from Mr Garcia 15. In regard to the present case, the recent Lombardero to the Ministry and, then, as judgment in Regione Toscana, which is not the individual closure decisions concerning dissimilar to the case now before the Court, the eight projects at issue. That being said, I may shed more light on the criteria to be remain of the opinion that the Commission applied by the Community judicature in correctly claimed that the first action is examining the nature of an act challenged inadmissible. I shall now go on to explain by means of the judicial remedy provided my reasons for thinking thus. for under Article 173. 1 9In Case T-81/97 the Tuscany Region had brought proceed- ings before the Court of First Instance for the annulment of two decisions adopted by the Commission in the form of letters, and of the act (never communicated to the applicant) revoking the Community aid already granted for a project under the 14. The Court has held that, in accordance integrated Mediterranean programmes. In with the objective laid down by Article 164 the first letter, which was sent on of the Treaty, an action for annulment must 21 November 1994 by the director of the be available in the case of all measures EAGGF to the Italian authorities, the adopted by the institutions, whatever their nature or form, which are intended to have legal effects. 16 In ruling on the admissibil- 17 — See, inter alia, judgment in Case T-3/93 Air France v ity of an action under Article 173, there- Commission [1994] ECR II-121, paragraphs 57 to 59. fore, the Court pays attention more to the 18 — See, inter alia, orders in Case C-25/92 Miethke v Parlia- ment [1993] ECR I-473, paragraph 10, Case C-64/93 Donatab and Others v Commission [1993] ECR I-3595, paragraph 13; and judgment in Case T-83/92 Zunis Holding and Others [1993] ECR II-1169, paragraph 30. 16 — Judgment in Case 22/70 Commission v Council [1971] 19 — Judgment in Case T-81/97 Regione Toscana v Commission ECR 263. [1998] ECR I-2889.

Commission referred to Article 10 of Reg- Tuscany Region. It was merely the inescap- ulation No 4256/88, 20 which is in similar able consequence of the earlier finding by terms, mutatis mutandis, to Article 12 of the Commission that the applicant's right Regulation (EEC) No 4254/88 (see para- to financial assistance had been revoked graph 4 above), pointing out that the (paragraphs 29 and 30). request for final payment for the project in question ought to have reached it by 31 March 1995. Referring to the Court's case-law, 21 the Court of First Instance chiefly recalled that a written statement of opinion by a Community institution does not constitute a decision against which an action for annulment lies, since it is not capable of producing legal effects and does not seek to produce such effects (paragraph 16. Finally, the Tuscany Region also chal- lenged the letter of 31 January 1997 in 22). In the circumstances of the case, which the Commission, in reply to the according to the Court of First Instance, it request for final payment (and to a sub- was the application of the legal provision in sequent reminder) by the applicant, and question to a given situation which was referring to its note of 21 November 1994, capable of producing legal effects and not stated that it had received that request on the interpretation of that provision by the 4 April 1995 and the accounting docu- Commission in its letter. Nor, moreover, ments in support only on 29 May 1995. could the letter at issue be deemed to Consequently, it informed the applicant, constitute a Commission decision on the the amounts of Community assistance had request for final payment submitted by the been automatically released on 30 Septem- applicant, the latter being subsequent in ber 1995. Since the second letter, which time by several months to the contested act was the subject of proceedings, deprived (see paragraph 16 below). Since it provided the Tuscany Region of the financial assis- nothing more than an interpretation of the tance initially granted to it owing to non- aforementioned Article 10, the letter of observance of the time-limit laid down in 21 November 1994 was purely informative Article 10, it clearly showed the manner in and did not in itself alter the legal situation which the Commission was applying that of the addressee (paragraphs 23 to 26). provision to the applicant's situation. It was Likewise the Court of First Instance therefore actionable under Article 173 (see declared inadmissible the claim for annul- paragraphs 27 and 28). ment of the act under which the Commis- sion automatically revoked the amount in issue. In fact that act did not in fact produce any legal effect as regards the

19. The letter of 28 July 1995 is a different case. That act came into being quite incidentally in the course of the settlement of accounts concerning Netherlands pro- jects co-financed by the ERDF. In the absence of that letter, which, as regards the addressee Member State, was essen- tially informative (concerning the Commis- sion's interpretation of Article 12), the 18. It is, it seems to me, beyond doubt that Netherlands legal situation within that the letter of 28 July 1995, apart from procedure remained unchanged. The letter giving the Commission's view on the cor- challenged by the Netherlands authorities rect interpretation of Article 12, also was then complemented by the overall informed the Netherlands authorities of calculations and particularised, as regards the Commission's intention not to pay, at all the individual projects at issue: (i) by least in regard to five projects, the final debit notes of June 1995 and January 1996 balance which had been requested out of concerning project Nos 84.07.03.003, time by the beneficiary State. 22 Viewed in 84.07.03.004 (see below), 85.07.04.005, this light the act challenged in Case 8 7 . 0 7 . 0 4 . 0 0 1 , 8 7 . 0 7 . 0 4 . 0 0 4 and C-308/95 may be assimilated to the Com- 88.07.04.002 and (ii) by the decisions mission's letter of 31 January 1997 at issue adopted in the form of letters dated in Regione Toscana (see paragraph 16 25 October 1995 and 16 February 1996 above). However, in Case T-81/97 the concerning project Nos 84.07.03.001, contested letter was the only act giving 80.07.03.002 and 84.07.03.004 (see para- the Commission's definitive view on the graphs 7, 9 and 10 above). Thus, it was right of the Tuscany region to the Commu- only on notification to the applicant of nity aid granted for the (only) project at those notes that it could be deemed bound issue. Since there had been no earlier to honour those specific financial obliga- advance payments, and thus no need for tions, as laid down in each of them and by reimbursement of amounts unduly paid, the date stated therein (and in the case of the contested act definitively regulated project No 80.07.03.002 as regards the financial relations between the EAGGF Netherlands' entitlement to receive the and the applicant. Thus, the alteration of final balance). It is true that, as regards the latter's legal situation (loss of entitle- implementation of the budget, mere finan- cial implementing decisions (commitments, 22 — It must be assumed that on 28 July 1995 the Commission must have received at least the request for final payment regarding five projects communicated to it by the Nether- 23 — See also judgment in Case 44/81 Germany v Commission lands authorities on 1 June 1995 (see footnote 10 above). [1982] ECR 1855, paragraphs 10 to 12.

20. I am therefore persuaded by the plea of inadmissibility raised by the Commission for the first time in the defence (see 25 — See judgment in Case 60/81 IBM ν Commission [1981] paragraph 12 above). Viewed in the more ECR 2639, paragraphs 10 to 12. See also order of 16 July 1998 in Case T-274/97 Ca'Pasta ν Commission [1998] general context of the administrative activ­ ECR II-2925, paragraphs 24 to 30. The letter in which the ities carried out by the Commission with a Commission informs a company of an internal procedure leading to cancellation of financial assistance granted to it view to implementing the budget, the letter and of recovery of the amount already paid must be regarded as a provisional informative measure intended to of 28 July 1995 must be regarded as a pave the way for the final decision. The Court of First merely preparatory act or 'intermediate Instance reaffirmed that the adverse effects which may stem from the fact that the procedure in question is still measure' and as such not challengeable underway are no more than the logical consequence of its under the terms of the IBM decision in being initiated and, for as long as the Commission merely adopts provisional measures, are not indicative of an act which the Court held: 'In the case of acts or producing binding legal effects capable of affecting the applicant's interests. See also judgment in Case 114/86 decisions adopted by a procedure involving United Kingdom ν Commission [1988] ECR 5289, para­ several stages, in particular where they are graphs 12 to 15, in particular paragraph 13. A Commis­ sion decision to follow a particular line of conduct with the culmination of an internal procedure, it regard to the establishment of restricted lists of candidates for service contracts in the framework of ACP-EEC is clear from the case-law that in principle cooperation is not a challengeable act. In the Court's words 'it is not the announcement of that intention but the drawing-up of the lists themselves which is capable of having legal effects, in so far as it may result in the omission of certain undertakings from those lists and thus 24 — See judgment in Case 190/84 Les Verts ν Parliament deprive them of the possibility of participating in the [1988] ECR 1017, paragraph 8. contracts in question.'

21. In my opinion, therefore, the action in be no doubts as to the admissibility of the Case C-308/95 is to be deemed inadmissi- second action which, moreover, is not ble because it was brought out of time {dies disputed by the Commission.27 On the a quo: 29 June 1995) as regards five merits the grounds relied on by the Nether- projects and prematurely (that is to say lands in Case C-84/96 concern, in the order prior to notification of the official closure in which I propose to analyse them: (i) decisions adopted on 25 October 1995, misapplication of Article 12 by the Com- 15 January and 16 February 1996) as mission as far as the refusal to extend the regards the others. 26 31 March 1995 deadline is concerned; (ii) inadequacy of the statement of reasons underlying the letters of 16 February 1996, and (iii) infringement by the Commission of general principles of Community law (Community solidarity and regional part- nership, legitimate expectations and pro-

consider, on the other hand, that there can a c c o u n t s r e l a t i n g to p r o j e c t N o 84.07.03.004 on account of failure to give consideration to information which was, 26 — The outcome of the investigation into the alleged con- however, in the Commission's possession firmatory nature of the letter at issue in relation to that of 7 April 1995 (see paragraphs 6 and 11 above) does not prior to 1 April 1995. alter the conclusion which I am here proposing to the Court, so much so that it is more or less superfluous to

taken place. That re-examination may, moreover, take the form of a meeting organised at the Commission's initiative (i) and ii) Misapplication of Article 12 in so with the addressee of the earlier act to discuss questions far as the 31 March 1995 deadline was forming the subject-matter of that act, even if such meeting were to reveal no new element and would not result in the regarded as mandatory and, in the alter- Commission's adopting a different view (see judgment in IPK-München v Commission, cited above at footnote 17, native, (ii) defect in reasoning in the letters

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OPINION OF MR LA PERGOLA — CASES C-308/95 AND C-84/96

As the Commission istrative consequence of that principle, to has stated, the applicant's arguments fly in which it adds nothing. Moreover, the the face of both the plain logical, semantic wording of Article 12 is said to allude to and grammatical meaning of Article 12 and a discretionary power on the part of the of a systematic and purposive interpreta Commission also to take into account tion of that provision. 28 By making it a requests for payment received after the requirement for requests for final payment

I would observe incidentally that this question has not been expenditure eligible under the projects in before the Court in any other proceedings, which bears out the fact that there is no interpretative problem concerning question for Community financing had to the mandatory nature of the deadline for the submission of be incurred. requests for final payment laid down in Article 12 [and in analogous provisions in: (i) Article 9(2) of Council Reg ulation (EEC) No 2080 of 20 July 1993 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the financial instrument of fisheries guidance (OJ 1993 L 193, p. 1); (ii) Article 8 of Council Regulation (EEC) No 4255/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Social Fund, as amended by Council Regulation (EEC) No 2084/93 of 20 July 1993 (OJ 1993 L 193, p. 39) and (iii) Article 10 of Regulation No 4256/88, cited above, as amended by Regulation No 2085/93, cited above (see footnote 20)].

Automatic release, under Article 12, of portions of sums already committed is failed to explain the grounds on which the said to have occurred in the case of around 500 projects.

with their obligations in due time. To that it is otiose to engage in a discussion of the end, failure to observe the deadline for alleged inadequacy of the reasoning under- submitting those requests was penalised by lying the letters of 16 February 1996 (see the automatic release of the portions of the paragraph 25 above). sums already committed for the granting of assistance. How, then, can it be seriously maintained that the 31 March 1995 dead- line is merely of an administrative nature or that the Commission enjoys discretionary powers in this connection (save for its mandatory intervention in regard to the settlement of accounts)? On the other (iii) Infringement by the Commission of the hand, just because Article 12 did not attach general principles of solidarity and regional any legal consequence to the failure by the partnership, protection of legitimate expec- Commission to observe the 30 September tations and proportionality 1995 deadline, the fact that the Commis- sion adopted closure decisions in regard to the two projects at issue after that date had passed appears to be irrelevant to the 26. (a) The applicant maintains that, even question whether the 31 March 1995 dead- if the Commission did act in conformity

30 September 1995 deadline. The error vitiating the contested decisions is, accord- ing to the applicant, all the more serious since the expenditure forming the subject- 30 — See, inter alia, judgments in Case 78/74 Deuka and Others [1975] ECR 421 and Case C-325/91 France v Commission [1993] ECR 1-3283, paragraph 26. The principle of legal certainty, however, requires that a provision laying down a 31 — As the applicant pointed out, in the context of the preclusive period, particularly one which may nave the structural funds partnership in attaining the common goals effect of depriving a Member State of the payment of operates, subject to observance of the respective financial, financial aia its application for which has been approved legal and institutional competence of the partners (Com- and on the basis of which it has already incurred mission and authorities designated by the Member State considerable expenditure, should be clearly and precisely concerned), in regard to the preparation and financing, as drafted so that the Member States may be made fully well as the ex ante appraisal, monitoring and ex post aware of the importance of their complying with the time- evaluation of operations (see Article 4 of Regulation limit (see judgment in Germany v Commission, cited above No 2052/88, as replaced by Article 1 of Regulation in footnote 23, paragraph 16). No 2081/93).

matter of the requests for final payment jects Nos 80.07.03.002 and 84.07.03.004. was all incurred before 31 March 1995 and The Commission was therefore under an the delay in submitting those requests was obligation, it is alleged, to inform the due to the meticulous checks operated by Member States of the new policy which it the Netherlands authorities to ensure that was intending to adopt in this area and to the conditions were met for payment of the specify what would be the financial effects final balance to the beneficiaries and that consequent on its interpretation of Arti- the information submitted to the Commis- cle 12. In the absence of any such statement sion was accurate. of opinion, the Netherlands authorities were legitimately entitled to expect that final closure of the two projects at issue would take place, as in the past, in a spirit of concentration and solidarity, in view also of the fact that the Commission did not need six months to arrange for settlement of the accounts in question. According to the applicant, the situation of legitimate expectation continued even after it received the letter of 23 February 1995 (see para- 27. (b) According to the Netherlands, then, graph 5 above) in which the Commission the letters of 16 February 1996 contra- cited the wording of Article 12, a provision vened the general principle of the protec- said to be anything other than unambig- tion of legitimate expectations. The appli- uous, whilst not however pointing out the cant observes that the Community legisla- consequences attendant upon non-obser- tion on structural funds applicable at the vance of the 31 March 1995 deadline. By time when financial assistance for the the same token, the Commission ought to projects at issue was granted imposed have replied by return of post to the letter neither a completion deadline as regards of 21 March 1995 which showed that the the financial obligations entered into in Ministry believed that it could submit respect of projects to be undertaken over requests for final payment also after several successive financial years nor a 31 March 1995. deadline for the submission of requests for final payment. Under the system then in force, 32 it was the individual decisions granting financial assistance which laid down the periods for completion of pro- jects which, moreover, were usually exten- ded by the Commission (even several times for the same project) at the request of the Member State concerned. Article 15(3) in conjunction with Article 12 therefore sig- nificantly altered, with retroactive effect, the rules applicable at the time when 28. (c) Finally, the Netherlands rely on the financial assistance was granted for pro- Court's case-law concerning review of the proportionality of sanctions according to which the imposition of penalties such as 32 — In that connection the Netherlands cited Regulation (EEC) loss of entitlement to aid may be said to be No 724/75 of the Council of 18 March 1975 establishing a in conformity with Community law only if European Regional Development Fund (OJ 1975 L 73, p. 1). the obligations whose contravention is thus

(iv) Misdescription of the letter of 21 March 1995 from the Ministry as a document not constituting a definitive request for payment; (v) failure to consult the Fund committee prior to adoption of the decisions of 16 February 1996 and (vi) inaccuracies in the settlement of the accounts relating to project No 84.07.03.004 29. Nor, in my view, may this plea be upheld. Infringement of the principles of solidarity and partnership, protection of legitimate expectations and proportionality relied on by the Netherlands Government 30. (d) Since none of the main pleas raised in fact presupposes that the Commission, as by the applicant can, in my view, be upheld, it has pointed out, enjoys a certain margin I now turn to an examination of those of discretion in the application of Arti- raised in the alternative. The first concerns cle 12. However, as I have already had the Commission's appraisal of the letter of occasion to point out, that is not the case 21 March 1995 from the Ministry. Not (see paragraph 26). On plain considera- only did the Commission not regard that tions of good sense, because to hold letter as a definitive request for payment otherwise would be to call in question the but it failed to make known in due time (by whole functioning of the Community, the 31 March 1995) its own viewpoint to the obligations of sound administration and Netherlands authorities. Consequently, solidarity with the Member States (includ- those authorities were, it is contended, ing regional partnership), which are incum- unable to regularise the document by bent on the Commission, cannot include completing it with the missing information the obligation to look into the doubts within an appropriate period or other entertained by one or other Member State period to be laid down, if need be, by the as to the correct interpretation of recently Commission. Thus, the Commission is said enacted rules. Finally, it is plain that, where to have misapplied Article 15(3) and Arti-

31. On this point too I am swayed by the Commission's arguments. Although techni- cally Article 28 of Regulation No 1787/84 (repealed with effect from 1 January 1989)

33 — Hereinafter 'Regulation No 1787/84' (OJ 1984 L 169, p. 1). Article 28 aforesaid made final payment to the 32. (e) The applicant goes on to allege that Member State concerned of the amount of the ERDF assistance subject to presentation of the following details: adoption of the decisions of 16 February the name of tne undertaking concerned or, in the case of infrastructure projects, the name of the responsible 1996 ought to have been preceded by authority, the location of the investment, total public expenditure incurred as from the twelfth month before the date on which the Commission receives the request for assistance and that part of the amount for which payment is applied for, the amount of the payment requested, the 34 — None the less, the applicant states that, under Article 15(1) amount actually invested and confirmation that the of Regulation No 2052/88, as replaced by Article 1 of investment made conforms with the initial project, the Regulation No 2081/93 (see paragraph 14 above), the date of completion of the investment, the number of jobs grant of ERDF assistance for projects in respect of which created or maintained by investments in industry, the crafts the Commission adopted a decision prior to 1 January and the services sector, and the socioeconomic effects of 1989 continues to be governed by the relevant provisions the measures undertaken which may be assessed at this of Regulation No 1787/84. stage. 35 — See footnote 29 above and relevant part of text.

consultation of the ERDF Committee, as request of 6 April since, on the one hand, provided for in Article 32 of Regulation the criteria on which the calculations were No 1787/84 (see footnote 33 above), not based were vague and, on the other, the repealed or amended by Article 12, in calculation resulted in ERDF aid equal to regard to measures reducing or cancelling 33.3% of total expenditure being granted aid already granted. Nor may this plea be for the project, that is to say more than the

None the less, according to the applicant, the principles of partnership and sound administration required the Commission, once the 33. (f) Finally, the Netherlands request the 31 March 1995 deadline had expired, to Court to annul the closure decision in make use of the information contained in regard to project No 84.07.03.004 in the interim request of 6 April 1994 and to which the Commission sought reimburse- ignore the withdrawal thereof by the Neth- ment of NLG 1 364 180 (and order the erlands authorities. Above all, it was open Commission to pay the applicant the final to the Commission to have obtained the balance of NLG 844 500) because the correct criteria for those calculations from defendant wrongly failed to have regard to the original decision granting aid for the the particulars contained in the request for project at issue. interim payment of 6 April 1994.

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OPINION OF MR LA PERGOLA — CASES C-308/95 AND C-84/96

of its own negligent conduct. The applicant the Netherlands authorities that the Com- Government decided, after cancelling its mission ought to have actively sought to interim request of 6 April 1994, not to remedy their errors and omissions and to submit a fresh duly amended request, correct the inaccurate information supplied reserving its right to communicate in the by it there is frankly no warrant whatso- final request up-to-date information on the ever in the relevant legislation or in the total amount of expenditure incurred. Court's case-law on the Commission's obli- However, that request reached the Com- gation to cooperate in a spirit of solidarity mission after expiry of the deadline laid with the Member States in accordance with down in Article 12. For the view taken by Article 5 of the Treaty.

IV — Conclusion

35. In light of the foregoing I propose that the Court should:

— Declare the action in Case C-308/95 to be inadmissible,