T-274/97
ECLI:EU:T:1998:182
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CATASTA v COMMISSION
O R D E R O F T H E C O U R T O F FIRST INSTANCE (Third Chamber) 16 July 1998 *
In Case T-274/97,
Ca'Pasta Srl, a company incorporated under Italian law, represented by Paolo Piva, of the Venice Bar, and Guy Arendt, of the Luxembourg Bar, -with an address for service in Luxembourg at the latter's Chambers, 7 Val Sainte-Croix,
applicant,
v
Commission of the European Communities, represented by Hubert van Vliet, of its Legal Service, acting as Agent, assisted by Alberto Dal Ferro, of the Venice Bar, 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: Italian.
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A P P L I C A T I O N for annulment of a decision allegedly contained in a letter of 4 August 1997 addressed by the Commission to the applicant,
T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Third Chamber),
composed of: V. Tiili, President, C. P. Briët and A. Potocki, Judges,
Registrar: H . Jung,
makes the following
Order
The relevant provisions
1 O n 18 December 1986, the Council adopted Regulation (EEC) N o 4028/86 on Community measures to improve and adapt structures in the fisheries and aquac- ulture sector (OJ 1986 L 376, p. 7).
2 Under Article 1(1) of that regulation, the Commission may grant Community financial aid for certain measures undertaken in the fisheries and aquaculture sector.
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3 Under Articles 11 and 12 of the regulation, projects relating to the development of aquaculture and structural works in coastal waters in the Veneto region (Italy) may benefit from Community financial aid of 40% of the costs of the relevant project provided that the financial contribution from the Member State concerned is between 10% and 30%.
4 Article 44 provides that the Commission may decide to suspend, reduce or discon- tinue a grant of aid, in accordance with the procedure laid down in Article 47. Article 44 specifies that aid may be suspended, reduced or discontinued in particu- lar when conditions imposed in the decision to grant aid are not satisfied.
5 Article 47 provides:
' 1 . Where the procedure laid down in this article is to be followed, matters shall be referred to the Standing Committee for the Fishing Industry, by its chairman, either on his own initiative or at the request of the representative of a Member State.
2. The representative of the Commission shall submit a draft of the measures to be taken. The Committee shall deliver its opinion within a time limit to be set by the chairman according to the urgency of the matter. ...
3. The Commission shall adopt the measures which shall apply immediately. However, if these measures are not in accordance with the opinion of the Com- mittee, the Commission shall forthwith communicate them to the Council. In that event the Commission may defer their application for not more than one month from the date of such communication. The Council, acting by a qualified majority, may adopt different measures within one month.'
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The facts
6 By decision of 29 April 1991, pursuant to Regulation N o 4028/86, the Commis- sion granted the applicant financial aid for a project for the modernisation of an aquaculture production unit in Contarina (Veneto) (hereinafter 'the approval'). The Commission undertook to finance 40% of the cost of the project and the Ital- ian Republic undertook to finance 30% of the cost.
7 It was specified in the conditions annexed to the approval that:
'... the proposed works may not be changed or altered without the prior consent of the national authorities and, where appropriate, the Commission. If they are sig- nificantly altered without the Commission's agreement, and the national authori- ties or the Commission finds the alterations unacceptable, the contribution may be reduced or discontinued.'
8 The applicant presented an initial document reporting the state of progress of the works on 18 March 1992, after which the Commission paid it the first instalment of the Community aid. The Italian State paid the first instalment of the State con- tribution.
9 O n 10 March 1997, during an inspection at the applicant's offices, the Italian State and the Commission learned that the applicant company had been sold during the spring of 1995.
10 Subsequently, by letter dated 24 June 1997, the Commission informed the appli- cant that because the sale of the business fell within the class of fundamental
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changes requiring the prior consent of the national and Community authorities, it had breached the conditions laid down in the approval. Accordingly, referring to Regulation N o 4028/86, the Commission notified the applicant of its intention to initiate the procedure for the discontinuance of the contribution and the recovery of the sum already paid, and invited the applicant to state, within 30 days, the reasons why it had failed to comply with the conditions laid down.
1 1 By letter dated 21 July 1997 the applicant replied that neither Regulation N o 4028/86 nor the approval required that the sale of a business which had received a contribution under the said regulation should be made conditional upon obtaining the prior agreement of the national and Community authorities.
12 By letter dated 4 August 1997 (hereinafter 'the letter at issue'), the Commission disputed the applicant's contentions and informed it that:
'... the Commission's staff confirm the continuation of the internal procedure with a view to discontinuing the contribution and recovering the amount already paid'.
Procedure and forms of order sought
1 3 By application lodged at the Registry of the Court of First Instance on 16 October 1997 the applicant brought these proceedings.
14 By a separate document lodged on 22 December 1997, the Commission raised an objection of inadmissibility of the action under Article 114(1) of the Rules of Pro- cedure.
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15 O n 20 March 1998, the applicant submitted its observations on that objection.
16 In its application, the applicant claims that the Court should:
— annul the contested decision;
— order the Commission to pay the costs.
i7 In its objection to admissibility, the Commission contends that the Court should:
— declare the action inadmissible; and
— order the applicant to pay the costs.
18 In its observations on the objection to admissibility, the applicant contends that the Court should:
— dismiss the objection to admissibility and proceed to examine the merits of the case;
— in the alternative, reserve its decision on the objection for the final judgment.
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Admissibility of the action
Arguments of the parties
19 In essence, the Commission considers that the present action is inadmissible because the letter at issue is merely a letter providing information and is not in the nature of a decision and cannot, therefore, be the subject-matter of an action for annulment under Article 173 of the EC Treaty.
20 The applicant considers that the action is admissible because the letter expresses a definitive view on the result of the procedure commenced by the Commission under Article 47 of Regulation N o 4028/86. The applicant maintains that it is clear from the letter that the Commission intends to discontinue its financial aid. Any application brought against a later, final decision would be inadmissible because any such later decision would do no more than confirm the decision contained in the letter.
21 As in Joined Cases 8/66, 9/66, 10/66 and 11/66 Cimenteries CBR and Others v Commission [1967] E C R 75 and in Case C-47/91 Italy v Commission [1992] E C R 1-4145, the decision contained in the letter entails such adverse effects that it should be regarded as a measure open to challenge.
22 In that connection, the applicant points out that, whilst the procedure under Article 47 of Regulation N o 4028/86 is pending, payment of the Community and national aid is suspended, to the detriment of the applicant.
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Findings of the Court
23 Under Article 114(3) of the Rules of Procedure, where the defendant applies to the Court of First Instance for a decision on admissibility, the remainder of the pro- ceedings are oral, unless the Court of First Instance decides otherwise. In the present case, the Court of First Instance is of the view that it has sufficient infor- mation from its examination of the documents on file, and there is no need, there- fore, to open the oral procedure.
24 According to settled case-law, any measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 173 for a declaration that it is void (see, for example, Case T-154/94 CSF and CSME v Commission [1996] ECR II-1377, at paragraph 37).
25 In the case of acts or decisions drawn up in a procedure involving several stages, and particularly at the end of an internal procedure, it is only those measures which definitively determine the position of the institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision (see, for example, Case T-212/95 Oficemen v Commission [1997] ECR II-1161, paragraph 53).
26 In the letter at issue, the Commission informed the applicant of the 'continuation of the internal procedure with a view to cancelling the contribution [granted to the applicant] and recovering the amount already paid'.
27 That wording shows clearly that the Commission had not yet taken a final decision on the discontinuance of the financial aid granted to the applicant, but that it was preparing such a decision.
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28 The letter is therefore not a measure which produces binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in his legal position within the meaning of the judgment in CSF and CSME v Commis- sion, cited above. As the Commission rightly maintains, it is merely a letter pro- viding information.
29 As to the adverse effects which the applicant claims to suffer as a result of the pro- cedure pending before the Commission (see paragraphs 21 and 22 of this order), they are merely the logical consequence of the commencement of that procedure. Even if, as in the present case, the Commission adopts temporary measures in the context of that procedure, such effects do not indicate the existence of a measure which produces binding legal effects such as to affect the interests of the applicant.
30 It follows that the letter at issue is not a measure capable of forming the subject- matter of an action under Article 173 of the Treaty.
31 In light of the foregoing, the application is inadmissible.
Costs
32 Under Article 87(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs, if they have been applied for in the successful party's pleadings.
33 Since the applicant has been unsuccessful in its claim, it must be ordered to pay the costs as applied for in the Commission's pleadings.
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On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicant is ordered to pay the costs.
Luxembourg, 16 July 1998.
H. Jung V. Tiili
Registrar President
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