C-199/01

OPINION OF MR MISCHO — JOINED CASES C-199/01 P AND C-200/01 P

OPINION OF ADVOCATE GENERAL MISCHO delivered on 10 July 2003 1

1. By application lodged at the Registry of I — The facts giving rise to the appeals the Court of Justice on 14 May 2001, IPK- München GmbH ('IPK'), in Case C-199/01 P, and the Commission of the European Communities in Case C-200/01 P, each 3. The legal background and the facts brought an appeal pursuant to Article 49 of giving rise to the appeals are set out in the the EC Statute of the Court of Justice judgment under appeal as follows: against the judgment of the Court of First Instance (Third Chamber) of 6 March 2001 in Case T-331/94 IPK-München v Com- mission [2001] ECR II-779 ('the judgment under appeal'). By the judgment under appeal, the Court of First Instance annulled 'Facts the Commission's decision of 3 August 1994 refusing to pay IPK the balance of financial assistance granted to support a project to create a database of information on ecological tourism in Europe ('the decision'). 1. On 26 February 1992 the Commission published in the Official Journal of the European Communities a call for proposals with a view to supporting projects in the field of tourism and the environment (OJ 1992 C 51, p. 15). It stated that it intended to allocate a total of ECU 2 million to that pro- gramme and to select about 25 pro- jects. The call for proposals also stated that projects selected should be com- pleted within one year after signature of the contract. 2. By order of the President of the Court of 15 October 2001, the two cases were joined for the purposes of the written and oral procedures and the judgment. 2. On 22 April 1992 the applicant, an undertaking established in Germany 1 — Original language: French. and active in the field of tourism,

4. In a letter dated 4 August 1992 the 7. By letter of 23 October 1992 the Commission granted ECU 530 000 in Commission informed the applicant aid to the Ecodata project, which that it expected to receive the first represented 53% of the cost of the report by 15 January 1993. In the same project, and requested the applicant to letter, the Commission also asked the sign and return the "declaration by the applicant to submit two additional beneficiary of the aid" (hereinafter interim reports by 15 April and 15 "the declaration"), which was annexed July 1993. Finally, it repeated that the to that letter and contained the condi- final report was to be presented by 31 tions for receipt of the aid. October 1993 at the latest.

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8. The applicant was also asked to agree 12. Studienkreis' participation in the pro- to the participation in the project of a ject was discussed at a meeting which German undertaking, Studienkreis für took place at the Commission on 19 Tourismus ("Studienkreis"). The Com- February 1993. The minutes of the mission had paid Studienkreis a sub- meeting state: sidy of ECU 60 000 in 1991 to set up an ecological tourism project called "Ecotrans".

"Representatives of [the applicant], the three partners of Ecotrans [Studien- kreis] will meet in Rome on Saturday 13 March in order to ... agree an 9. On 18 November 1992, Mr von implementation plan involving all five Moltke, the Director-General of DG organisations. [The applicant] will XXIII, thinking that the applicant had report on the outcome of the meeting still not sent back the declaration, sent to the Commission on Monday 15 the applicant a further copy, which he March." asked it to sign and return to him.

2. The pilot questionnaire was mani- 16. By letter of 30 November 1993 the festly over-detailed for the project in Commission informed the applicant question having regard in particular to that: the resources available and the nature of the project. It should have been based on a more realistic appraisal of the principal information needed by those dealing with questions of tourism "... the Commission considers that the and the environment ... report submitted on the [Ecodata] project shows that the work completed by 31 October 1993 does not satisfac- torily correspond with what was envi- saged in your proposal dated 22 April 1992. The Commission therefore con- siders that it should not pay the out- standing 40% of its proposed 3. The linking together of a number of contribution of ECU 530 000 for this databases to establish a distributive project. database system has not been achieved at 31 October 1993.

The Commission's reasons for taking this position include the following:

4. The type and quality of data from the test regions is most disappointing, particularly as there were only four 1. The project is nowhere near com- Member States with three regions in plete. Indeed the original proposal each. A great deal of such data as there provided for a pilot phase as the fifth is in the system is either of marginal stage of the project. Stages six and interest or irrelevant for questions seven respectively were to be System relating to the environmental aspects Evaluation and System Expansion (to of tourism particularly at the regional the 12 Member States) and it is clear level.

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I now have to inform you that having '... the applicant cannot claim that the fully considered the matter ... I see little Commission caused the delay in the com- point in our having a further meeting. I pletion of the project. The applicant waited am therefore now confirming that we until March 1993 before starting discus- will not, for the reasons set out in my sions with its partners concerning the letter of 30 November and above make distribution of tasks with a view to any further payment in respect of this completing the project, even though it was project. We will continue to review responsible for coordination of the project. with the other services whether or not Thus, the applicant allowed one half of the we should ask for a refund of part of time envisaged for completing the project to the 60% already paid. In the event that elapse before it was reasonably able to we decide to seek such a refund, I will commence proper work. Even though the let you know.'" applicant has provided some evidence that one or more officials of the Commission did interfere in the project between November 1992 and February 1993, it has not established at all that this interference prevented it from engaging in proper cooperation with its partners before March 1993.' I I— Procedure

7. By application lodged at the Registry of 4. It was in those circumstances that, by an the Court of Justice on 22 December 1997, application lodged at the Registry of the IPK brought an appeal pursuant to Arti- Court of First Instance on 13 October cle 49 of the EC Statute of the Court of 1994, the applicant brought an action for Justice against the judgment of the Court of annulment of the decision. First Instance in IPK v Commission.

17 It follows that the Court of First — set aside the judgment under appeal in Instance erred in law by requiring the so far as it starts from the premiss, in applicant to furnish proof that the paragraph 34 et seq., that points 6 to Commission officials' actions made it 12 of the Commission's letter of 30 impossible for it to engage in proper November 1993 do not form part of cooperation with its partners in the the grounds on which the decision is project.' based.

9. Consequently, the Court of Justice set — order the Commission to pay the costs. aside the judgment of the Court of First Instance in IPK v Commission, referred the matter back to that Court pursuant to the first paragraph of Article 54 of the EC Statute of the Court of Justice and reserved the costs. 12. The Commission contends that the Court should:

10. Subsequent to that reference, the Court of First Instance, by the contested judg- — set aside the judgment under appeal ment, annulled the decision and ordered the and dismiss the action brought by IPK Commission to bear its own costs and those against the decision,

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— in the alternative, set aside the judg- — first, allegedly incomplete assessment ment under appeal and refer the case of the statement of reasons for the back to the Court of First Instance, decision and breach of the prohibition of unjust enrichment,

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V — Concerning admissibility of the 19. In this respect, the Commission points appeals out that IPK no longer exists under that name and that, if this information is correct, the question arises whether it has capacity to bring an action. IPK however argues that there has been a mere change of 15. The Commission describes its pleas as name and that it is still registered under the based on 'procedural irregularities'. A read- same number with the Commercial Register ing of the list above indicates that they are, at Munich. That ought to suffice to dispel in actual fact, as IPK correctly points out, the Commission's doubts. pleas going to the substance. They do not in fact concern procedural irregularities but, on the contrary, invite the Court to examine the substance of several aspects of the reasoning of the Court of First Instance.

20. The real problem, however, is else- where and becomes clear on reading the forms of order sought by IPK. It is recalled that IPK requests that the Court annul the 16. That said, this error of classification is judgment of the Court of First Instance 'in devoid of consequences. Indeed, it does not so far as it is based on the principle, at obscure the content of those pleas and paragraph 34 et seq., that points 6 to 12 of cannot therefore relieve the Court from the the Commission's letter of 30 November necessity of analysing them. 1993 are not among the grounds on which the decision is based'.

17. IPK's argument that the incorrect classification of its pleas by the Commission 21. It is clear from the outset that these must result in the inadmissibility of the claims are not aimed at obtaining a varia- Commission's appeal must therefore be tion of the operative part of the judgment rejected. under appeal, which annulled the Commis- sion's decision. On the contrary, they expressly concern part of the grounds of the Court of First Instance's reasoning which IPK would like to have raised.

23. Furthermore, such an appeal falls foul of the wording of the second paragraph of Article 56 of the EC Statute of the Court of Justice which limits the right to bring an appeal to parties which were unsuccessful, 26. I would add, in that respect, that in any in whole or in part, at first instance. This is event it is not for the Court of First Instance not true of IPK which, at first instance, to annul the grounds on which a decision is sought annulment of the Commission's based. Indeed, by definition, a ground decision and which obtained that annul- cannot constitute an act having adverse ment. effects, which may be annulled on that basis. Only the operative part of a decision may have adverse effects and thus be subject to annulment. The operative part of the decision, that is to say, the refusal to pay the balance of Community aid, is, in accordance with the operative part of the 24. It is also apparent from case-law that contested decision, unquestionably such an appeal is inadmissible. Accordingly, annulled in its entirety. the Court has held that an appeal in the context of which the appellant, who had obtained the measure applied for at first instance, requested that the measure be given a legal basis other than that found at first instance, was inadmissible. 2

27. The appellant appears, in this context, to confuse the annulment of a ground on which a decision is based, which is pre- 25. It is true that IPK appears to complain cluded because a ground is not an act which that the Court of First Instance annulled the has adverse effects, with the duty of the decision only in part, in that certain institution which is the author of the measure annulled to give due effect to the judgment annulling the measure. Indeed, the course of action to be adopted by the 2 — Order of the President of the Court or 17 December 1998, Case C-363/98 P(R) Emesa Sugar v Council [1998] ECR said institution depends on the content of I-8787, paragraphs 44 to 46. the annulling judgment. The judgment

32. 'Therefore, given that, first, from the 29. However, the fact that the said para- summer of 1992 until at least 15 March graphs possibly may be used by the 1993 the Commission insisted that the Commission in the future cannot, in any applicant involve Studienkreis in the Eco- circumstances, give them the status of an data project (even though the applicant's act having adverse effects and therefore proposal and the decision granting the aid capable of being annulled. Only the future did not provide for that undertaking's decision could possess such status. participation in the project), — something which necessarily delayed realisation of the project — and that, second, the Commis- sion has not shown that, in spite of its interference, the applicant continued to be able to manage the project in a satisfactory manner, it must be held that the Commis- 30. It results from the foregoing that IPK's sion acted in breach of the principle of good application must be dismissed as inadmis- faith by refusing to pay the second instal- sible. It is therefore not necessary to ment of the aid on the ground that the examine the merits of the arguments put project was not completed on 31 October forward by IPK. 1993.'

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39. IPK adds that the Court of First Instance was bound by the judgment 35. In citing only point 1 of the letter of 30 making the reference. Since the Court of November 1993, the Court of First Instance First Instance found that the Commission referred exclusively to the fact that phases had not proved, as required by the Court, six and seven of the project were unfinished that its conduct had not prevented IPK from and therefore did not examine the second managing the project in a satisfactory reason supporting the decision to refuse to manner, the Court of First Instance was pay the balance of the financial assistance, compelled to annul the decision in its which the Court of First Instance annulled entirety. It was not possible to limit the in its entirety. scope of the nullity to a part of the decision.

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40. What is to be thought of these argu- passages of the Commission's defence to ments? which it refers in the context of this plea indeed contains considerations regarding the questionnaire drawn up by IPK.

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going against the project, without having B — Second plea: allegedly inaccurate carried out the appropriate legal review. assessment of the unlawful collusion between Mr Tzoanos, the Greek under- taking 01-Pliroforiki and IPK

48. In response, IPK points out, first, the purely factual nature of the plea relied on. 52. At paragraphs 88 and 89 of the Second, the alleged prohibition of unjust judgment under appeal, the Court of First enrichment is not, according to IPK, a legal Instance described the argument of the principle of Community law or a principle Commission based on collusion between of Belgian or German law. Third, IPK Mr Tzoanos, the undertaking 01-Pliroforiki points out that payment of the second and IPK. The Court of First Instance then instalment of Community aid has a legal rejected it in the following terms: basis, namely the agreement entered into by the Commission and IPK. However, unjust enrichment implies a benefit without a legal basis.

91 If account is taken of the fact that, 53. The Commission complains that the under Article 173 of the EC Treaty Court of First Instance failed to have regard (now, after amendment, Article 230 to the considerations set out at para- EC), the Court of First Instance must graphs 15 and 16 of the Court's judgment confine itself to a review of the legality in IPK v Commission. Indeed, if it is for the of the contested decision on the basis Commission 'to show that, notwithstand- of the reasons set out in that measure, ing the interference in question, the appli- the Commission's argument concern- cant continued to be able to manage the ing the principle fraus omnia corrumpit project in a satisfactory manner', the Court cannot be upheld. of First Instance could not ignore its argument regarding collusion as irrelevant. The Commission has explained that this collusion delayed the performance of the project at least until February 1993, given that, first, the project partners could not agree on the allocation of the funds called for by Mr Tzoanos in favour of the Greek partner, which brought the project to a 92 It must be added that if the Commis- standstill and that, on the other hand, IPK sion, having adopted the contested deliberately concealed the actions of decision, had taken the view that the Mr Tzoanos from Mr von Moltke. evidence mentioned in paragraph 89 above was sufficient to conclude that there was collusion between Mr Tzoanos, 01-Pliroforiki and the applicant which had vitiated the pro- cedure by which aid was allocated to 54. According to the Commission, by not the Ecodata project, rather than plead- taking account of the entire set of facts ing in the present proceedings a ground which it put forward in respect of collusion, which was not mentioned in the the Court of First Instance, from the outset, contested decision, it could have with- made it impossible for the Commission to drawn that decision and adopted prove that the delay in the project was not another decision not only refusing to due to its proposal of 27 July 1992 that pay the second instalment of the aid Studienkreis should participate in the pro- but also ordering repayment of the ject, but to collusion. When, therefore the instalment that had already been paid. Court of First Instance, at paragraph 85 of the contested judgment, said that 'since the Commission has failed to put forward any other arguments', the Commission has not shown that IPK, in spite of the interference of the Commission, 'continued to be able to manage the project in a satisfactory man- ner', the Court of First Instance drew an incorrect conclusion, given that it had not 93 Accordingly, the contested decision considered all the arguments regarding a must be annulled without there being delay in the work caused by the collusion any need to consider the other plea nor taken the evidence submitted in this advanced by the applicant.' regard into consideration.

57. What are we to make of these argu- ments? 61. Indeed, such an approach would be tantamount to allowing the Commission to furnish, a posteriori, a statement of reasons which did not appear in the contested decision. However, it is clear from settled case-law that the statement of reasons must, 58. The Commission criticises the con- as a rule, be notified to the person tested judgment in so far as it disregards concerned at the same time as the decision the evidence furnished in support of the adversely affecting him and that a failure to

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66. It is apparent from sending the Com- mission's submissions that this plea can be split into various aspects. 63. It follows that the Court of First Instance was fully entitled to consider as decisive the indisputable fact that the collusion alleged by the Commission was not one of the grounds of the decision and, 67. First, according to the Commission, the on this basis, to reject the Commission's analysis made by the Court of First Instance argument. In this connection, it had no duty is contradictory and incorrect. Indeed, the to rule on the factual validity of the Court of First Instance has observed itself Commission's claim that the delay in the that the Commission's proposal to have execution of the project was due to the Studienkreis participate in the project was a collusion rather than the interference of its proposal made in the interest of the project agents. and did not involve any restriction on IPK. The Commission points out, in that respect, that at paragraph 8 of its judgment, the Court of First Instance notes that the 4 — See Michel v Parliament, paragraph 22, and Case T-352/94 Commission had proposed to IPK that Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 276 and the cases cited therein. Studienkreis participate and that, at para-

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graph 69 of its judgment, the Court of First to have Studienkreis participate in the Instance states that the Commission had project. merely asked IPK to 'examine possibilities' of collaboration.

71. For the Commission, it was, conse- quently, wholly contradictory for the Court of First Instance, after having made all these 68. The Commission adds that the Court findings, nevertheless to conclude at para- of First Instance has observed that it had graph 79 of the contested judgment that the not made the grant of aid conditional on Commission's proposal was in breach of agreement to Studienkreis's participation. the principle of good faith. The Commis- Moreover, the Court of First Instance did sion also cites, in this respect, paragraph 86 not make any declaration as to possible of the contested judgment. difficulties which a rejection or a lack of consideration of this proposal would cause the appellant.

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74. There is, moreover, a second reason 77. Indeed, although a mere proposal left which leads to the conclusion that there is IPK entirely free to decide as to the merits of no contradiction as alleged by the Commis- the possible participation of Studienkries, sion. Indeed, contrary to what the Commis- the imposition of a condition to that effect sion suggests, the Court of First Instance would be legally binding and thus, a did not in any way regard the Commis- fortiori, a restriction imposed on IPK's sion's initiative as a mere proposal, or even freedom to manage the project as it saw fit. friendly advice.

76. Second, the Commission also alleges, 79. Indeed, if the Commission had chosen, under this plea, that there is another at the time of its decision to grant the aid, to contradiction in the Court of First require Studienkries to be involved, any Instance's reasoning. It asserts that the candidates would have known what to Court of First Instance could not, on the expect and could have taken steps accord- one hand, regard the proposal to involve ingly. In other words, legal certainty would Studienkries as a breach of the principle of have been ensured. This would not be the good faith and, on the other hand, submit, case, on the other hand, if, as in this at paragraph 69 of the judgment, that the instance, the Commission exerted pressure Commission could have required agreement ex post to secure the involvement of to the participation of Studienkries by Studienkries although, in the absence of including a condition to that effect in its formal conditions in this respect, the parties decision granting the aid. concerned were entitled to consider that

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they were free to organise the realisation of 82. Because, ultimately, this case involves the project as they saw fit. sums which are precisely quantifiable and quantified, the Court of First Instance, at paragraph 94 of the contested judgment, ought not to have pronounced the annul- ment of the entirety of the decision, as a legal consequence of its analysis, but have annulled the decision in so far as the Commission refused, by the decision, to 80. It follows from the above that the third contribute financially to expenses legally of the Commission's pleas must be rejected. incurred by IPK for stages six and seven of the project which, subsequently, did not see the light due to lack of time.

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85. It was therefore impossible for the context. The Commission, as the Court of Court of First Instance to annul the decision First Instance quite rightly pointed out, in part. The decision lacking the necessary must take the measures required to comply statement of reasons, according to the with the judgment. The Commission must Court of First Instance, this defect could therefore remedy the defects affecting its not fail to affect the entirety of the decision. decision, but the content of the decision is The Court of First Instance therefore did not otherwise prejudiced. not assume that there was a correspondence between the value of the phases of the project which had not been realised and the value of the balance of the aid. It could have been otherwise only if the Court of First Instance had found that the defects affect- ing the decision concerned only parts of that decision. 89. For the above reasons, I suggest that the plea based on a failure to consider the consequences of a breach of the principle of good faith should be rejected.

86. However, it is not apparent from the wording of the decision that the delay noted by the Commission was supposed to justify only the refusal to pay a part of the balance of the aid.

E — Fifth plea: failure to consider the principles dolo agit, qui petit, quod statini redditurus est and fraus omnia corrumpit 87. The Court of First Instance was there- fore entitled to conclude that the defects affected the entirety of the decision.

91. The Commission points out that it is of First Instance in the end requires the not a criminal court either, but that it must Commission to pay the aid so long as the nevertheless fulfil its responsibilities with suspicion has not become an irrefutable regard to the protection of the Commu- certainty. nity's financial interests. On the one hand, the Commission is in a dilemma inasmuch as it must, when there is any suspicion of corruption, take decisions well before it can rely on criminal decisions having the force of res judicata. As this case shows, it is not possible either to stay proceedings before 93. The Commission considers, further- the Court of First Instance pending any more, that failure to take into account the criminal judgment, so long as the party principle dolo agit, qui petit, quod statim charged has not given his agreement. redditurus est and the conclusion of the Court of First Instance that it could consider the principle fraus omnia corrum- pit only if it was put forward as a reason for the decision itself and not a ground of defence set against a claim are errors in law. Like national civil and criminal courts, the Court of First Instance, has after all, wide powers of inquiry to examine the facts.

96. It goes without saying that such an 100. That is not so. On the contrary, the approach is incompatible with the very Commission is quite capable of applying notion of judicial review, which it renders the principle fraus omnia corrumpit. wholly meaningless. In addition, it runs Indeed, as the Court of First Instance counter to the requirements of the most correctly noted at paragraph 92 of its basic legal certainty. judgment, 'if the Commission, having adopted the contested decision, had taken the view that the evidence mentioned in paragraph 89 above was sufficient to conclude that there was collusion between Mr Tzoanos, 01-Pliroforiki and the appli- cant which had vitiated the procedure by 97. It is therefore hardly surprising that which aid was allocated to the Ecodata this approach is in conflict with the settled project, rather than pleading in the present case-law of the Court, which I have already proceedings a ground which was not emphasised in examining the first plea, mentioned in the contested decision, it according to which the validity of an act could have withdrawn that decision and is to be assessed in the light of the grounds adopted another decision not only refusing which it contains and an institution is not to pay the second instalment of the aid but entitled to bring new grounds before the also ordering repayment of the instalment court. that had already been paid'.

98. It follows, moreover, that the Commis- sion cannot complain that the Court of First 101. The Commission is therefore entitled Instance did not make use of its power of to take necessary measures where concrete investigation. Indeed, even if the Court of evidence indicates that action on its part is First Instance had been able to prove the required in order to protect the financial collusion alleged by the Commission, it interests of the Community. It is to be noted would not have been able to refer to, for that, contrary to the Commission's claim, want of any mention of the said collusion in the Court of First Instance did not require the grounds of the decision. the Commission to wait for the delivery of

— dismiss the appeal brought by the Commission of the European Communities as partly inadmissible and partly unfounded;

— order each party to bear its own costs.

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