C-359/98
ECLI:EU:C:2000:29
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CA' PASTA V COMMISSION
OPINION OF ADVOCATE GENERAL JACOBS delivered on 20 January 2000 *
1. This is an appeal by an Italian company, 3. The Commission granted Ca'Pasta Ca'Pasta, against an order of the Court of financial assistance for an aquaculture First Instance rejecting its application to project at Contarina, Veneto, amounting that Court as inadmissible. 1 That applica- to 40% of the cost of the project. In tion challenged a letter from the Commis- addition Italy undertook to finance 30% sion concerning aid granted to Ca'Pasta of the cost. under Council R e g u l a t i o n (EEC) No 4028/86 of 18 December 1986 on Community measures to improve and adapt structures in the fisheries and aqua- culture sector. 2
4. Subsequently the Commission informed Ca'Pasta of its intention to set in motion the procedure for discontinuing the aid and for recovering the amount already paid. After receiving Ca'Pasta's observations, the Commission, by letter of 4 August 1997, informed Ca'Pasta that the Commission's services were pursuing the internal proce- dure with a view to discontinuing the aid and recovering the amount already paid. 2. That regulation provided for financial assistance by the Community for various projects in that sector. Financial contribu- tions were also to be made by the Member States. Article 44 of the regulation provi- ded that the Commission could, in accor- dance with the procedure laid down in Article 47, decide to suspend, reduce or 5. It is that letter which was challenged by discontinue aid if certain conditions Ca'Pasta before the Court of First Instance, imposed were not satisfied. which, by order of 16 July 1998, rejected the application as inadmissible on the ground that the letter was not a measure * Original language: English. which could be the subject of an action for 1 — Order of 16 July 1998 in Case T-274/97 Ca'Pasta v Commission [1998] ECR II-2925. annulment under Article 173 of the EC 2 — OJ 1986 L 376, p. 7. Treaty (now Article 230 EC).
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OPINION OF MR JACOBS — CASE C-359/98 P
6. In its order the Court of First Instance final decision on the discontinuance of the pointed out that, according to the case-law, financial aid granted to the applicant, but any measure which produces binding legal that it was preparing such a decision. The effects such as to affect the interests of an letter is therefore not a measure which applicant by bringing about a distinct produces binding legal effects such as to change in his legal position is an act or affect the interests of the applicant by decision which may be the subject of an bringing about a distinct change in his action under Article 173 for a declaration legal position ... As the Commission rightly that it is void. maintains, it is merely a letter providing information. As to the adverse effects which the applicant claims to suffer as a result of the procedure pending before the Commission ..., they are merely the logical consequence of the commencement of that procedure. Even if, as in the present case, the Commission adopts temporary mea- sures in the context of that procedure, such 7. In the case of acts or decisions drawn up effects do not indicate the existence of a in a procedure involving several stages, and measure which produces binding legal particularly at the end of an internal effects such as to affect the interests of the procedure, it is only those measures which applicant. It follows that the letter at issue definitively determine the position of the is not a measure capable of forming the institution upon the conclusion of that subject-matter of an action under Arti- procedure which are open to challenge cle 173 of the Treaty.' and not intermediate measures whose pur- pose is to prepare for the final decision.
8. The Court of First Instance continued:
9. In its appeal Ca'Pasta asks the Court of Justice not only to quash the order of the 'In the letter at issue, the Commission Court of First Instance but also to annul the informed the applicant of the "continua- Commission's alleged decision. The latter tion of the internal procedure with a view plea is plainly inadmissible. As the Com- to cancelling the contribution [granted to mission points out, the Court of Justice the applicant] and recovering the amount cannot on an appeal examine the substance already paid". That wording shows clearly of the case where the Court of First that the Commission had not yet taken a Instance has not done so.
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CA' PASTA V COMMISSION
10. Ca'Pasta challenges the order of the 13. Thirdly, Ca'Pasta alleges that the pro Court of First Instance on two grounds. cedure laid down by Article 47 of the First, it maintains that the contested letter regulation, since it does not require the contained a definitive decision, and Commission when it adopts measures to advances three arguments. take account of a negative opinion of the Standing Committtee for the Fishing Indus try, is in effect weighted in favour of the Commission, so that the Commission's letter constituted the taking of a stance which in practice could not be changed. On that point, however, Article 47 provides that the Commission is to submit a draft of the measure to be taken to the Standing Committee and that if the proposed mea sure is not in accordance with the Com 11. First, it argues that there was an mittee's opinion the Council may adopt (implied) decision not to pay the second different measures. and the final parts of the aid. That argu ment seems to me contrary to the clear terms of the letter, which speaks of the continuation of the procedure with a view to cancelling the contribution and recover ing the amount already paid. The letter cannot in my view be read as containing an implied decision of the kind alleged.
14. Ca'Pasta adds in effect that it is all the more important that it should be able to 12. Secondly, Ca'Pasta contends that the challenge the Commission's letter in the letter resulted in the suspension of both the light of the Court's case-law holding inad Community and the national contribution missible actions to annul a measure which throughout the procedure initiated by the merely confirms an earlier decision not Commission and thus must be regarded as challenged within the time-limits.1 That a measure open to challenge. However, as argument however is misconceived: if the the Commission points out, those effects do Commission's letter is, as the Court of First not mean that the letter had any binding Instance has ruled and as the Court of legal effect. An action for annulment can lie Justice should in my view confirm, not only where there is an act or measure to itself a decision, then clearly the decision annul; the mere provision of information cannot be annulled, and since the letter remains an essentially informative docu ' 3 — Ca'Pasta cites Joined Cases 166/86 ami 220/86 Irish Cement v Commission | 1 9 8 8 | KCR 647.1 and Case CM 2/90 Infortek ment it is not susceptible to challenge. v Commission | 1 9 9 0 | ECR I-Ί265.
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ultimately taken cannot merely confirm an their consequences for the rights of the earlier decision. persons directly concerned, than the initial refusal to grant the assistance sought. Such measures run counter to the legitimate expectations of the person concerned with regard to the conduct of his business.' 4 That case, however, related to a formal decision.
15. None of the arguments advanced in support of the first ground can be regarded, therefore, as well founded.
18. Ca'Pasta's arguments to the effect that the letter had adverse consequences may be well founded, but the possible existence of such consequences cannot obviate the need for a definitive decision before a measure 16. Ca'Pasta's second ground is that the can be subject to judicial review. As the order is inadequately reasoned and contra- Commission points out, if a letter inform- dictory. However the order does in my view ing a person that a procedure was under adequately explain the reasons which led way could be challenged, that would not the Court of First Instance to conclude that only be contrary to the established case-law the contested letter did not constitute a but would prejudice legal certainty and definitive decision: see the extract from the would obstruct the administrative func- order set out in paragraph 8 above. tions of the Commission.
19. It is therefore appropriate, in my view, 17. Ca'Pasta contends that the Court of in cases such as the present one that only First Instance did not correctly analyse the definitive decisions can be subject to judi- letter as a measure susceptible to challenge cial review, and not intermediate or pre- in view of the seriousness of the conse- paratory decisions. Moreover, in the pre- quences and cites the Opinion of Advocate sent case it might well be thought that there General La Pergola in Commission v Lis- was not even an intermediate decision, but restal and Others in support of its com- only the provision of information that a plaint: 'as the Court has already had procedure was being continued which was occasion to observe, the reduction or liable to result in a decision. suspension of assistance already granted, or the repayment to the Member State of sums initially granted, are measures which 4 — Case C-32/95 P [1996] ECR 1-5373, paragraph 45 of the are objectively more serious, in view of Opinion.
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CA' PASTA V COMMISSION
Conclusion
20. For the above reasons, the Court should in my opinion:
(1) dismiss the appeal;
(2) order Ca'Pasta to pay the costs.
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