C-48/96

V — Conclusion I-2896

I — Preliminary observations Groothusen GmbH8iCo. Betriebs KG ('the appellant') against the judgment delivered on 13 December 1995 by the First Chamber of the Court of First Instance of the European 1. In this case the Court has been asked to 1 Communities ('the contested judgment'). give judgment on the appeal by Windpark

1 — Case T-109/94 Windfark Groothusen v Commission [1995] * Original language: Greek. ECB. II-3007.

I - 2876

WINDPARK GROOTHUSEN v COMMISSION

management systems'. In addition, the Com­ 5. In accordance with Article 8 of the Ther­ mission stated that a document giving details mie Regulation, the procedure for the selec­ of the procedure for the submission of pro­ tion of eligible projects is initiated by the posals and information on the eligibility con­ Commission, which must publish an invita­ ditions, selection criteria and other relevant tion to submit projects in the Official Journal information could be obtained from it.

2 — OJ 1990 L 185, p. 1. 3 — OJ 1992 C 179, p. 14.

I - 2877

OPINION OF MR COSMAS — CASE C-48/96 P

7. The appellant is a company whose object tested judgment, this communication reads is to construct and operate a wind park in as follows: the Groothusen area, near Emden in Ger­ many.

'The Commission has recently decided as 8. On 27 November 1992 the appellant sub­ follows: mitted to the Commission an application for aid of ECU 1 933 495 for the construction of a wind park.

10. On 19 July 1993 the Commission decided to grant financial support to a total Copies of Annexes I and II may be obtained of 137 projects. By the same decision it drew on request in writing to: ...' up a 'reserve list' of 49 replacement projects. Of the 52 projects in the field of wind energy, 11 were granted financial support and eight were entered on the reserve list. A brief communication concerning this decision was published in the Official Jour­ 5 nal of 24 July 1993. As stated in the con­ 11. On 5 August 1993 the Commission informed the appellant that its project had been placed on 'a supplementary list of 4 — The Commission thus established, pursuant to Article 9(2) in projects which may be granted financial sup­ conjunction with Article 10(1) of the Thermie Regulation, the priorities for invitations to submit projects in accordance port before 31 December 1993 if sufficient with the so-called 'committee' procedure. budgetary credits become available, particu- 5 — OJ 1993 C 200, p. 4.

I - 2878

WINDPARK GROOTHUSEN v COMMISSION

13. By letter of 13 January 1994 to the appellant, the Commission stated that the 17. Finding that a distinction had to made appellant's project could not be granted between the Commission's decision of 19 financial support in 1993 owing to the lack July 1993 and that in the Commission's let­ of appropriate budgetary credits. ter of 13 January 1994 to the appellant, the Court of First Instance found that the appel­ lant's action was admissible only in so far as it contested the latter decision (paragraph 17 et seq.). In addition, for the reasons set out in the judgment, the Court dismissed the appellant's three pleas in law, namely: (1) 14. The appellant responded by letters of 9 failure to comply with an essential proce­ and 23 February 1994, expressing its disap­ dural requirement in that the decision was pointment and asking the Commission to not accompanied by an adequate statement

I - 2879

OPINION OF MR COSMAS — CASE C-48/96 P

6 — As enshrined in the combined provisions of Article F(2) of the Treaty on European Union, Article 6 of the European Convention for the Protection of Human Rights and Funda­ mental Freedoms, and Article 173, fourth paragraph, of the Treaty. In addition, the appellant relies on the order of 29 19. The respondent asks the Court (a) to January 1997 in Case C-393/96 P(R) Antonissen v Council and Commission [1997] ECR 1-441, paragraph 36, and the dismiss the appeal and (b) to order the appel­ judgment in Case C-395/95 P Geotronics v Commission lant to pay the costs of the proceedings. [1997] ECR 1-2271.

I - 2880

WINDPARK GROOTHUSEN v COMMISSION

22. The Court of First Instance took the view (paragraph 23) that the Commission's decision of 19 July 1993 was a definitive decision so far as concerned the examination and selection of projects to be supported under the 1993 Thermie programme. It accepted that no re-examination of the 25. The Court of First Instance therefore projects was undertaken at the end of 1993 rightly considered that there were two dis­ 7 and the only question which arose at that tinct decisions of the Commission and that stage was whether there were still funds Windpark's action was admissible only in so available or whether the projects which had far as it was directed against the later been granted financial support had all been decision contained in the letter of 13 January carried out and the available credits thereby 1994, and was out of time in so far as it was exhausted. It also observed (paragraph 23) directed against the decision of 19 July 1993 that, although the Commission stated in its refusing the appellant's application for finan­ letter to the appellant of 5 August 1993 that cial support for its project, on the ground it reserved the right to amend its decision, subject to the availability of budgetary cred­ its, it had to be concluded at that time that 7 — It should be noted that this distinction was originally formu­ the appellant's project was not one of the lated by the appellant itself, as appears from paragraph 17 of the judgment: 'in its application, the [appellant] sought only 137 projects selected and, consequently, the annulment of the Commission's decision of 13 January 1994. However, the [appellant] indicated in its reply that, in so far Commission had in effect refused the appel­ as its complaints relate to earlier decisions taken by the lant's application for financial support. Commission, its action should also be regarded as contesting those decisions, particularly the decision of 19 July 1993'.

27. It is also clear from paragraph 8 of the judgment that the appellant knew, ever since the decision of 5 August 1993, that credits might not be available and that it had to challenge the decision, which damaged its 9 interests. Consequently these submissions 26. The appellant's assertion that the Com merely repeat the appellant's assertions based mission 'was only prepared to grant financial on facts previously submitted to the Court support for a maximum of ECU 918 028' of First Instance, which found them to have must also be rejected for two reasons. The no basis, and in essence the appellant is ask first, is that this assertion relates to the ing for them to be re-examined, which is

28. The first plea in law must therefore be cial support before 31 December 1993 if suf dismissed in its entirety. ficient budgetary credits become available, particularly if some of the projects which have already been granted financial support 9 — On this point the Court of First Instance also observed as have not been carried out". According to an follows (paragraph 27): 'The [appellant] had been informed annex to that letter, the maximum amount of of the existence of the decision selecting the projects to be awarded financial support for 1993 since August 1993, when financial support for the project had been it received the Commission's letter of 5 August 1993.

The Commission, for its part, asserted at the hearing that it would have provided an individual explanation if the [appel lant] had expressly ashed for one.' 8 — See the judgments in Case C-283/90 P Vidrányi v Commis- 10 — See, for example, the judgment in Case C-73/95 P Viho v sion [1991] ECB. 1-4339, paragraph 12, and Case C-136/92 P Commission [1996] ECR 1-5457, paragraphs 25 and 26, and Commission v Brazzelli Lualdi and Others [1994] ECR the orders of 26 April 1993 in Case C-244/92 P Kupka- 1-1981, paragraph 66, and the orders of 17 September 1996 in Floridi v ESC [1993] ECR 1-2041, paragraphs 7 to 11; of 26 Case C-19/95 P San Marco v Commission [1996] ECR September 1994 in Case C-26/94 P X v Commission [1994] 1-4435, paragraph 40, and 16 September 1997 in Case ECR 1-4379, paragraphs 10 to 13, and Koelman v Commis- C-59/96 P Koelman v Commission [1997] ECR 1-4809, para sion, cited in footnote 8, paragraph 52. graph 31.

32. Now let us now consider whether there was a misapplication of Article 173, fifth paragraph, of the Treaty, that is to say, what was the beginning of the period allowed for 30. The appellant points out that, as stated challenging the Commission's decision. in paragraph 9 of the contested judgment, it had requested further information by fax of 9 August 1993. The Commission did not reply. According to the appellant, the Com­ mission ought to have realised from the fax that the appellant had not understood the exact meaning of the letter of 5 August 1993 33. It should first be noted that the Court of and the Commission ought to have replied in Justice has held on several occasions that, order to explain the precise context of its failing publication or notification, the period decision. The first reply from the Commis­ for bringing an action can begin to run only sion to the appellant's request was given in from the moment when the party concerned the letter of 13 January 1994, which is there­ acquires precise knowledge of the content of fore the date on which the period prescribed for initiating proceedings began to run.

11 — On this point the appellant refers to the judgment in Case C-143/95 P Commission v Sociale and Others [1997] ECR I-1. It also relics on the judgment in Case C-84/94 Uniled Kingdom v Council [1996] ECR 1-5755, paragraph 19, in which the Court of Justice referred to its settled case-law that what is merely Council practice (and therefore, accord­ ing to the appellant. Commission practice also) cannot 31. In addition, the appellant claims that, as derogate from the rules laid down in the Treaty, and cannot therefore create a precedent binding on the Community the decision was not published and was not institutions with regard to the correct legal basis.

34. In view of this settled case-law, I con­ sider that the Court of First Instance was not 14 mistaken in law when it found that the 36. In paragraph 9 the Court of First appellant was aware from August 1993 of Instance stated that 'by fax of 9 August 1993, circumstances which ought to have led it to addressed to the Commission, the [appellant] take action, as it had been informed that its requested further information', but that it project had been placed on a supplementary did not ask for the full text of the decision of list and that this entailed no obligation on 19 July 1993. Furthermore, the appellant did the Commission's part (paragraph 8). not react to the communication in the Official Journal of the European Communi- 15 ties, nor did it ask for an individual expla­ nation of the reason for which its project was included on the supplementary list but could only receive financial support 'if suffi­ cient budgetary credits become available, 35. With regard to the existence of contra­ particularly if some of the projects which dictions in the contested judgment, there is have already been granted financial support in my opinion, as the Commission rightly 16 have not been carried out'. In addition, the observed, no contradiction between para­ Court of First Instance expressly states graphs 9 and 28. More specifically, in para­ (paragraph 9) that 'the [appellant] requested graph 28 the Court of First Instance found further information and authorisation to that the appellant 'did not take the opportu­ commence work'. In other words, although nity either to request the full text or an indi­ the appellant was aware of the existence of vidual explanation with respect to the the decision of 19 July 1993, which allegedly damaged its interests, it did not ask for the 17 text of the decision. 12 — See, for example, the judgments in Case C-180/88 Wirtschaftsvereinigung Eisen- und Stahlindustrie v Com- mission [1990] ECR I-4413, paragraph 22; Case 236/86 Dillinger Hüttenwerke v Commission [1988] ECR 3761, paragraph 14, and Commission v Socarte, cited in footnote 11, paragraph 31, and also my Opinion in Case C-309/95 15 — Cited in footnote 5. Commission v Council, pending, paragraph 30 et seq. 16 — Paragraph 8 of the contested judgment. 13 — Sec, for example, the judgments cited in footnote 12, 17 — As the Court of First Instance admits (paragraphs 3 and Wirtschaftsvereinigung Eisen- und Stahlindustrie v Com- 48), the Commission's services had available a form, cited mission, paragraphs 22 to 24, and Dillinger Hüttenwerke v by the appellant, which contains, first, details of the pro­ Commission, paragraph 14, and the order of the Court of cedure for the submission of proposals and, second, infor­ Justice of 5 March 1993 in Case C-102/92 Ferriere Acciairie mation on the eligibility conditions, selection criteria and Sarde v Commission [1993] ECR I-801, paragraph 18. other relevant information, and adds that no interested party was permitted to incur expenditure before the Com­ 14 — See paragraph 27 of the judgment, reproduced in footnote mission takes a decision on financial support. 9.

41. The appellant also observes that the grounds of the Commission's decision of 19 C — Breach of the obligation to state reasons July 1993 rejecting its application in its entirety remain unknown and that this justi­ fies annulment of the decision. It also claims that the Commission's letter of 13 January 1994 does not give the full text of the decision and that the reason for the decision, that is to say, exhaustion of the credits, is erroneous because until 31 December 1993 the Commission had ECU 10 817 552 avail­ 39. Under its third plea in law, the appellant able for certain targeted projects. From this asserts that the 1993 budget for the Thermie the appellant concludes that the Court of programme was ECU 174 000 000, of which First Instance ought to have found that the ECU 129 000 000 was available for projects decision contained in the letter of 13 January for the promotion of energy technology. The 1994 did not state the reasons on which is appellant then refers to the introduction to was based. the Thermie report, which shows that in 1993 financial support totalling ECU 140 000 000 was granted to 139 projects, while ECU 34 000 000 was allocated to accompanying measures. As the decision of 19 July 1993 granted approximately ECU 42. In support of its contention that the 129 000 000 to 137 projects, the appellant Commission's assertion that all the credits concludes that approximately ECU available after 19 July 1993 for the Thermic 11 000 000 was made available without being programme were granted to certain targeted allocated to specific projects. projects is mistaken, the appellant refers to a

18 — According to the appellant, this letter bears the reference 0627/96 FR. As cited by the appellant, the letter states as follows: (a) after a favourable opinion from the Thermie Committee, the Commission, by decision of 19 July 1993, made available ECU 129 180 000 for the construction of projects promoting technologies in the energy sector, (b) In the decision of 13 December 1993 the Commission made 46. The plea in law concerning breach of the available ECU 12 980 000 for the implementation of obligation to state reasons is admissible only projects, (c) In 1993 ECU 138 000 000 were made available for the implementation of projects, (d) Subsequently, by in so far as it is directed at the judgment of decision of 13 December 1993, three projects on the supple­ mentary list and three projects on which the Member States the Court of First Instance, not at the had agreed in the course of the written procedure provided decision of the Commission which is at for by Article 10(1) of Regulation No 2008/90 were given financial support in lieu of the projects on the original list of abandoned projects.

19 — At the hearing the appellant stated that, in addition to the 137 projects for which financial support was originally granted by the decision of 19 July 1993, a total of 14 20 — In its reply the appellant, no doubt in error, refers to the projects were finally granted support. decision of 13 July 1993.

I-2886

WINDPARK GROOTHUSEN v COMMISSION

issue. However, in examining this plea it is reasons given, and the need for information necessary, as I have said with regard to the of the undertakings to whom the measure is previous point, to consider the scope of the addressed or of other parties to whom it is of obligation to give full and correct reasons for direct and individual concern within the the Commission's decision. I should like to meaning of the second paragraph of Article make the following observations in this 173 of the Treaty'. respect.

21 — Sec, for example, Case C-353/92 Cresce v Comicii [1994] ECR 1-3411, paragraph 19; Joined Cases C-63/90 and C-67/90 Portugal and Spain v Council [1992] ECR I-5073, 23 — The disclosure of such comparisons with other undertak­ paragraph 16, and Case C-465/93 Aliatila Fruchthandelsge- ings is perhaps also a breach of the obligation of profes­ sellschaft and Others [1995] ECR I-3799, paragraph 16. sional secrecy within the meaning of Article 214 of the Treaty: sec Case 53/85 AKZO Chemie v Commission [1986] 22 — Sec Joined Cases 296/82 and 318/82 Netherlands and Leen- LCR 1965, paragraphs 26 to 28, and also Netherlands and warder Papierwarenfabriek v Commission [1985] ECR 809, Leeuwarder Papierwarenfabnek v Commission, cited in paragraph 19. footnote 22, paragraph 27.

I - 2887

OPINION OF MR COSMAS — CASE C-48/96 P

(b) Misapplication of the Thermie Regu­ 24 — Where the authority which makes the decision has a discre­ tion, the obligation to state reasons is stricter than where lation the authority has a non-discretionary power: see the Opin­ ion of Advocate General Lagrange in Case 66/63 Nether- lands v High Authority of the ECSC [1964] ECR 533. 25 — I would recall that the Court has stated that, where an offi­ cial is recruited following a competition, the administration is not obliged to give the reasons for its decision in relation to the unsuccessful candidates: sec Case 16/64 Rauch v Commission [1965] ECR 179. In the judgment in Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 27, concerning the reasons for the decisions of a selection board in competitions with a large number of candidates, the Court has also stated that a selection board may, as a 52. In this connection the Commission first stage, be allowed to send candidates information only on the criteria and the results of selection, and provide observes that the four projects which detailed explanations only at a later stage and to candidates received financial support by way of deroga­ who expressly request them. See Case 89/79 Bonu v Coun- cil [1980] ECR 553, paragraph 6; Case 225/82 Verzyck v tion from the decision of 19 July 1993 were Commission [1983] ECR 1991, paragraphs 16 and 17; and Case 225/87 Belardinelli and Others v Court of Justice placed on the supplementary list after the [1989] ECR 2353, paragraph 7. See also the judgment in opinion of the Thermie Committee and, Case C-213/87 Gemeente Amsterdam and VIA v Commis- sion [1990] ECR I-221, in which the Court held that 'the unlike the appellant's project, provided for conciseness of the statement of reasons for the decision whereby the Commission refused assistance from the Euro­ 'an association of at least two independent pean Social Fund for a vocational training foundation is an undertakings established in different Member unavoidable consequence of the processing by computer of several thousand applications for assistance upon which the States'. Consequently, they were to be given Commission must adjudicate within a short period. A more detailed statement of reasons in support of each individual preference under Article 6(3)(a) of the Ther­ decision would therefore be likely to compromise the ratio­ mie Regulation. The Commission further nal and efficient allocation of financial assistance from the Fund'. submits that the nature of the appellant's

54. On this point the Court of First Instance states (paragraph 44) that 'in order to arrive at the decision in the letter of 13 January 1994, the only question for the Commission (c) Mistake with regard to the facts

26 — Article 2(2)(b) of the Thermic Regulation defines dissemi­ nation projects as 'projects designed to promote with a view to their broader utilisation within the Community, cither under different economic or geographical conditions or with technical modifications, innovatory techniques, processes or products which have already been applied once but, owing to residual risk, have not yet penetrated the market'. 27 — Article 4 of the Thermic Regulation defines 'specific 56. First of all, as regards the statement of projects' ('targeted projects') as follows: 'whenever it Commissioner Papoutsis to which the appel­ appears to be necessary, and in particular where a need is not being met or where significant technological advance lant refers in its reply, I do not think this can could be achieved through cooperation between persons or undertakings in at least two Member States, the initiative be taken into account, irrespective of may be taken to encourage or coordinate the setting-up of whether the document cited by the appellant specific projects, called "targeted projects"(emphasis added). is among the documents it produced and 28 — OJ 1993 C 171, p. 21. whether there was a special meeting of the

I-2889

OPINION OF MR COSMAS — CASE C-48/96 P

60. As the Commission correctly points out, the Court of First Instance observed (para­ graphs 7 and 24 of the judgment) that a brief communication concerning the decision of 58. The appellant also asserts that there was 19 July 1993 was published in the Official an unallocated total of ECU 10 817 552. This 31 Journal of the European Communities and figure was not referred to expressly in the notified to the appellant by letter of 5 judgment of the Court of First Instance, but August 1993. that Court may have taken it into account when it observed (paragraph 44) that there were still budgetary funds available. I do not think that the fact that this figure is not men­ tioned in the judgment is sufficient to prove

61. In view of the foregoing, once again I do not consider that the abovementioned sub­ 29 — See, for example, the judgment in Commission v Brazzelli mission by the appellant shows that the Laaldi and Others, paragraph 59, and the order in San Marco v Commission, paragraph 49, both cited in footnote judgment is mistaken in that it did not assess 8. 30 — See, for example, Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraphs 10 and 42; the order in San Marco v Commission, cited in footnote 8, paragraph 39, and the order of 16 October 1997 in Case C-140/96 Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 26. 31 — See the communication cited in paragraph 10.

I - 2890

WINDPARK GROOTHUSEN v COMMISSION

an essential factual submission which, sup­ concerned by a procedure for obtaining posing it to have been true, would have led financial support, the conditions of which to the appellant's application being allowed. had been previously published, so that it was That submission must be rejected. Other­ for those persons themselves to assess, with wise, one would be drawn into re-examining regard to submitting an application for that the facts of the case, which would be con­ purpose, whether they fulfilled the condi­ trary to the principles of the appeal pro­ tions for obtaining support. cedure.

63. The appellant claims that any person directly and individually concerned by a decision has, by virtue of certain fundamen­ tal principles of Community law, a right to 66. The appellant submits that the Court of be heard so that he can make known his First Instance made an error of assessment in views on the matters of law or fact which finding, on the ground that the appellant did have been taken into account to his detri­ not request further information, that there ment and which form the basis of the dis­ was no foundation for the claim that its right puted decision to refuse his application. to be heard was infringed (paragraph 49 of 32 Relying on the Court's case-law, the the judgment), although in paragraph 9 the appellant submits that the right to be heard Court of First Instance found that further must be accorded 'irrespective of any practi­ information had been requested in the fax of cal difficulties'. 9 August 1993.

64. According to the appellant, the Court of 67. Finally, according to the appellant, the First Instance was wrong in holding that the Court of First Instance was wrong not to Commission could refuse to hear the persons take account of the ECU 10 817 552 which the Commission granted to targeted projects between 19 July and 31 December 1993, a 32 — Sec Case C-32/95 P Commission v Lisrestal and Others matter on which the appellant also ought to [1996] ECR I-5373. have been heard.

I-2891

OPINION OF MR COSMAS — CASE C-48/96 P

68. The appellant's arguments raise the ques­ to be given a hearing during the selection tion of the extent to which the persons con­ procedure, which is conducted on the basis cerned are entitled to be heard before the of the documentation submitted by them. adoption of a decision granting, financial sup­ That procedure is appropriate in situations port to certain projects, to the exclusion of where hundreds of applications must be other projects, a problem which also arises in evaluated and it therefore does not constitute connection with support for the Thermie an infringement of the right to a hearing.' programme.

33 — The Thermie Regulation itself expressly provides that the procedure concerned is entirely a written procedure (see Article 8). 34 — See also paragraph 50 of the judgment.

I - 2892

WINDPARK GROOTHUSEN v COMMISSION

connected with the conduct of that person, it necessary to observe the abovementioned but on the basis of the application file which principle. In other words, the refusal of such it had lodged. an application does not give rise to a legal situation unfavourable to the operator con­ cerned and does not adversely affect him in such a way that the institution adopting the decision would have to give him an opportu­ nity to state his views as a person affected.

I - 2893

OPINION OF MR COSMAS — CASE C-48/96 P

nificantly affect their interests should be adopting the decision, the Commission had placed in a position in which they may effec­ misused its powers and also abused its dis­ tively make known their views'. Conse­ cretion. quently, where the Commission intends to reduce financial assistance originally granted, the beneficiary must be placed in a position in which it can effectively make known its views on the matters taken into account to its detriment in the grounds for the decision 41 reducing the assistance. 80. More specifically, the appellant contends that the Court of First Instance was wrong in holding that the Commission had made a correct assessment of the appellant's project because it followed the opinion of the Ther­ mie Committee. The appellant points out 77. In the present case, as the Court of First that the Committee met before the decision Instance correctly points out (paragraph 50), of 19 July 1993 was taken. Since the Court of no financial support was granted to the First Instance had ruled that it was inadmis­ appellant, which had merely been placed on sible to examine events which preceded that a reserve list of possible beneficiaries of date, it ought to have verified whether the Community financial support. Commission misused its powers by granting financial support to other applicants in the period from 19 July to 31 December 1993. Since financial support was accorded to tar­ geted projects (paragraph 44 of the contested judgment) and not to projects on the reserve 78. In view of the foregoing, the fourth plea list, the Thermie Committee was not in law must be dismissed in its entirety. involved. The appellant submits that, since the Commission put forward no grounds for acting in this way, it misused its powers, although it enjoys a wide discretion. Accord­ ing to the appellant, this ground of appeal relates to the fact that the Court of First E — Misuse of powers Instance infringed the principle that a discre­ tion must be exercised before a decision is adopted, and here it was not.

82. Furthermore, according to the appellant, 85. I consider that such evidence cannot be the Court of First Instance committed an adduced in appeal proceedings because that error in law in failing to take account of the would lead the Court of Justice to fact that the independent technical experts of re-examine the merits of the case, which falls the Commission who placed the project on outside the limits of review in appeal pro­ the reserve list (paragraph 56 of the con­ ceedings. tested judgment) may, as officials of the Member States, have allowed themselves to be influenced by national economic interests.

86. The fifth plea in law must therefore be dismissed.

83. On this point the Court of First Instance found (paragraph 58) that 'the [appellant] has not adduced any matter of fact or law show­ ing that the assessment of its project by the Commission, in conjunction with the Ther­ mic Committee, was vitiated by manifest F — Infringement of Articles 175, third para- error or misuse of power'. graph, 173, fourth paragraph, and 176 of the Treaty

88. More specifically, the appellant maintains the consequences of a decision setting aside that the Commission did not duly give a the contested judgment. decision on the application for financial sup­ port limited to ECU 918 028 which the appellant submitted on 27 November 1992. The appellant claims that it is entitled to rely 90. I should merely like to observe that, in on Article 175, third paragraph, of the deciding to reject the corresponding claim by Treaty. The Court of Justice must take the appellant (paragraph 61), the Court of account of the fact that the decision of 19 First Instance applied settled case-law of the July 1993 confirmed that the appellant's 4 Court of Justice 3 when it held, on the project could receive support because the appellant's claim that the Court should project was on the reserve list. Furthermore, direct the Commission to 'take a new it has been proved that the Commission still decision in accordance with the legal prin­ had ECU 10 817 552 available in the second ciples laid down by the Court of Justice', half of 1993 and this was granted to projects that 'this Court is not entitled, when exercis­ on the reserve list. Consequently, the Court ing judicial review of legality, to issue direc­ of Justice will have to find that the Commis­ tions to the institutions'. The Court of First sion must take a decision in this respect and Instance added, correctly, that 'it is for the the Court must state the factors determining administration concerned to adopt measures that decision. to implement a judgment given in proceed­ ings for annulment'.

I - 2896