T-145/95
ECLI:EU:T:1997:74
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ORDER OF 28. 5.1997— CASE T-145/95
ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
28 May 1997 *
In Case T-145/95,
Proderec — Formação e Desenvolvimento de Recursos Humanos ACE, a com pany incorporated under Portuguese law, having its seat in Almada (Portugal), rep o resented by Manuel Rodrigues, of the Lisbon Bar, 17D I Esq., Rua Torcato José Clavine, Pragal, Almada,
applicant,
v
Commission of the European Communities, represented initially by Ana Maria Alves Vieira and Günter Wilms, and subsequently by Maria Teresa Figueira and Knut Simonsson, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
* Language of the case: Portuguese.
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PRODEREC v COMMISSION
APPLICATION for annulment, under Article 173 of the EC Treaty, of a Com mission decision notified to the applicant by a letter of 11 May 1995 and amending and reducing the assistance from the European Social Fund initially approved and granted by an earlier decision approving Files Nos 881311 Pl and 880249 P3 ,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
composed of: K. Lenaerts, President, P. Lindh and J. D . Cooke, Judges,
Registrar: H . Jung,
makes the following
Order
The relevant provisions
1 Under Article l(2)(a) of Council Decision 83/516/EEC of 17 October 1983 on the tasks of the European Social Fund (OJ 1983 L 289, p. 38, hereinafter 'Decision 83/516'), the latter participates in the financing of vocational training and guidance operations.
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ORDER OF 28. 5.1997 — CASE T-145/95
2 Council Regulation (EEC) No 2950/83 of 17 October 1983 on the implementation of Decision 83/516/EEC (OJ 1983 L 289, p . 1, hereinafter 'Regulation No 2950/83') lists the items of expenditure which may be the subject of assistance from the European Social Fund ('ESF').
3 Under Article 5(1) of Regulation No 2950/83, approval given by the ESF to an application for finance is to be followed by the payment, on the date on which the training operation is scheduled to begin, of an advance of 50% of the assistance approved. Under Article 5(4), final payment claims are to contain a detailed report on the content, results and financial aspects of the relevant operation, the Member State certifying the accuracy of the facts and accounts in those claims.
4 Finally, according to Article 6(1), when Fund assistance is not used in conformity with the conditions set out in the decision of approval, the Commission may sus pend, reduce or withdraw the aid after having given the Member State concerned an opportunity to comment. Article 6(2) provides that sums paid which are not used in accordance with the conditions laid down in the decision of approval are to be refunded.
Background to the dispute
5 In 1988 the Departamento para os Assuntos do Fundo Social Europeu (Depart ment of European Social Fund Affairs, part of the Portuguese Ministry of Labour and Social Security) ('DAFSE'), acting for the Portuguese Republic and on behalf of the applicant, applied to the ESF for assistance for the 1988 financial year in respect of two projected training programmes relating to, first, a projected training programme intended to prepare young Portuguese nationals for taking up their first employment (File No 881311 P1) and, secondly, a projected training pro gramme intended to promote greater specialization and recycling in view of the economic crisis (File No 880249 P3).
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PRODEREC v COMMISSION
6 The two projects were approved by two decisions of the Commission notified to the applicant by letters from the DAFSE of 25 May 1988. So far as concerns Project 881311 P1 , the decision fixed the amount of ESF assistance at ESC 104 623 102, the Portuguese Republic undertaking to finance the project up to an amount of ESC 85 600 720 through the Orçamento da Segurança Social/ Instituto de Gestão Financeira da Segurança Social (Social Security Budget/ Institute for the Financial Management of Social Security) (OSS/IGFSS'). So far as concerns Project 880249 P3 , the decision fixed the amount of ESF assistance at ESC 60 851 922, the Portuguese Republic undertaking to finance the project up to an amount of ESC 49 787 936, also through the OSS/IGFSS.
7 On 14 July 1988 the applicant received, pursuant to Article 5(1) of the regulation, an advance of 50% of the assistance granted by the ESF together with that granted by the OSS/IGFSS, amounting to ESC 52 311 551 and ESC 42 800 360 in respect of File No 881311 Pi and ESC 30 425 961 and ESC 24 893 968 in respect of File No 880249 P3 .
8 After completion of the two operations concerned, the applicant submitted to the DAFSE a claim for final payment of the assistance granted. The amounts of Com munity and national assistance in respect of File No 881311 PI came to ESC 52 311 551 and ESC 42 800 360 respectively. The equivalent amounts in respect of File No 880249 P3 came to ESC 30 425 961 and ESC 24 893 968 respec tively.
9 On 2 February 1990, the DAFSE informed the applicant that its claim for the bal ance in File No 881311 Pi had been forwarded to the Commission, but that ESC 6 491 845 had been considered ineligible.
10 On 16 October 1991 the applicant asked the DAFSE to state the date of payment of the balance of the assistance obtained for the two projects completed. The DAFSE replied on 24 October 1991 that it awaited the submission of a report and an audit.
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ORDER OF 28. 5.1997— CASE T-145/95
1 1 Since the DAFSE did not forward those two documents, the applicant brought an action against the Portuguese State on 17 September 1993 under Article 69 of the Lei do Processo dos Tribunais Administrativos, Decreto-lei No 262/85 (Decree Law on Procedure before the Administrative Courts), of 16 July 1985 (hereinafter 'LPTA'), for a declaration that it was entitled to payment of the balance of the assistance. That action was dismissed on the ground that the defendant was not the Portuguese State but the body which was the author of the act, in that case, the Director General of the DAFSE. The applicant then brought an action of the same kind against the Director General of the DAFSE. The second action was not successful either, on the ground that the action that should have been brought was one in civil liability against the Portuguese State under Article 73 of the LPTA and Article 51(1 )(h) of the Estatuto do Tribunal Administrativo (Statute of the Administrative Court).
12 On 9 September 1994 the DAFSE communicated the certification decisions which it had taken following the claims for repayment of the balance and requested the applicant to repay to it, within a period of 30 days, a total of ESC 62 856 998, that is ESC 29 052 034 in the case of File No 881311 PI and ESC 33 804 964 in the case of File No 880249 P3. The applicant brought an action before the Tribunal Admin istrativo de Círculo de Lisboa (Lisbon Administrative Circuit Court) against that order for repayment.
13 On 11 May 1995 the DAFSE informed the applicant that the Commission had approved the claim for payment of the balance relating to File No 880249 P3 , con firming the certification made by the DAFSE and communicated on 9 September 1994.
14 On 25 May 1995 counsel for the applicant asked the DAFSE to send him a certifi cate or a certified true copy of the decision approving the claim for payment of the balance relating to File No 880249 P3. The applicant had still not received any reply to that letter by the time it brought the present action.
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PRODEREC v COMMISSION
Procedure
15 By application lodged at the Court Registry on 10 July 1995, the applicant brought the present action whereby it seeks the annulment of the decision of the Commis sion, notified to it by Letter No 5445 from DAFSE of 11 May 1995, amending, changing and reducing the amount which had been initially approved and granted by another Commission decision approving File Nos 881311 P1 and 880249 P3.
16 By document lodged at the Court Registry on 31 October 1995, the Commission raised a plea of inadmissibility, claiming that the contested act did not exist and that, in any event, the present action was out of time.
17 By order of 2 July 1996, the Court reserved the decision on that plea for the final judgment, pursuant to Article 114(4) of the Rules of Procedure.
18 On 9 December 1996 the Commission adopted decisions C(96) 2554 and C(96) 2555 in order to reduce the amount of the contribution granted by way of Decision C(88) 831 of 29 April 1988. According to the observations of the Commission in its defence lodged at the Court Registry on 18 December 1996, those decisions replace the Commission's approval of the claims for payment of the balance of the Community assistance granted in the context of File Nos 881311 P1 and 880249 P3 , which took the form of charge notes nos 95001035 U and 95001037 W of the Commission fixing the amount to be reimbursed at ESC 15 978 639 and ESC 18 592 730 respectively.
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ORDER OF 28. 5.1997— CASE T-145/95
19 The Commission concludes that there no longer is any need to adjudicate on the application in this case. It explains that, following the judgment of the Court of First Instance in Case T-85/94 (122) Commission v Branco [1995] ECRII-2993 , it withdrew the act contested in the present action, 'accepting the ground for annul ment based on breach of the obligation to state reasons, relied on by the applicant', and replaced that act by Decisions C(96) 2554 and C(96) 2555 of 9 December 1996. Those decisions fully satisfied the obligation to state reasons, so that the Commis sion not only gave the applicant satisfaction but also rendered the case devoid of purpose.
20 In its observations, lodged at the Court Registry on 4 February 1997, on the need to adjudicate the applicant claimed that the Court should:
— annul the act which is the subject of the proceedings, since it is defective and the Commission admits as much;
— refuse to recognize the right to replace a defective act by another act;
— order the Commission to pay all the costs.
On the need to adjudicate
21 The Commission's request, formulated in its defence, raises a procedural issue which should be settled without an oral procedure, pursuant to Article 114(3) of the Rules of Procedure.
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PRODEREC v COMMISSION
22 In its defence the Commission acknowledges the existence of the act contested in this action.
23 It has been shown to be the case that, by adopting Decisions C(96) 2554 and C(96) 2555 of 9 December 1996, the Commission implicitly withdrew that act on the ground that it did not satisfy the requirements in regard to the reasoning of decisions reducing the amount of Community assistance initially granted, as clearly stated in the judgment in Branco, cited above (paragraph 25).
24 That implied withdrawal took place after the present action was brought, for a reason specifically relied on by the applicant in the context of that action.
25 In its observations on the need to adjudicate, the applicant acknowledges, however, that the action 'lapses' following the withdrawal of the contested act, even though it disputes that the Commission is entitled to replace the contested act by the two decisions of 9 December 1996.
26 In the circumstances, it must be held that the withdrawal of the contested act pro duces effects equivalent to those of a judgment annulling it, without prejudice to the applicant's right to challenge the legality of the two Commission decisions of 9 December 1996 by way of a separate action. A judgment annulling the contested act, now withdrawn, would entail no legal consequences in addition to those of the withdrawal of that act, since, in the present case, this was done with retroactive
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ORDER OF 28. 5.1997— CASE T-145/95
effect. Furthermore, on 27 March 1997, the applicant brought an action under Article 173 of the Treaty against the two Commission decisions of 9 December 1996, which were forwarded to it by the DAFSE on 28 January 1997 (Case T-72/97).
27 The applicant thus retains no interest in seeking the annulment of the contested act. It follows that the present action has become devoid of purpose (see orders of the Court of Justice in Case C-123/92 Lezzi Pietro v Commission [1993] ECR I-809, paragraphs 8 to 11, and of the Court of First Instance in Case T-22/96 Langdon v Commission [1996] ECR II-1009, paragraphs 11 to 14).
28 As regards the applicant's claim, formulated in the statement of the relief which it seeks, that the Court should refuse to recognize the Commission's right to replace the contested act by another act, it need only be observed that the Court has no jurisdiction to issue such declarations in an action under Article 173 of the Treaty (see the order in Langdon, cited above, paragraph 17).
29 It follows that there is no need to adjudicate on the application.
Costs
30 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court of First Instance.
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PRODEREC v COMMISSION
31 In the present case, the Commission withdrew the decision at issue after the action was brought, and for a reason which was relied on by the applicant in its action. Accordingly, the Commission must be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fourth Chamber)
hereby orders:
1. There is no need to adjudicate on the application.
2. The Commission shall pay the costs.
Luxembourg, 27 May 1997.
H.Jung K. Lenaerts
Registrar President
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