Court of Justice of the European Communities (including Court of First Instance Decisions)

'1 When the Parliament finally adopted the general budget of the European Communities for the financial year 1992, it decided that "a sum of at least ECU 530 000 [would] be used to support an information network on ecological tourism projects in Europe" (OJ 1992 L 26, p. 1, 659).

2 On 26 February 1992 the Commission published in the Official Journal 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 programme and to select about 25 projects. The call for proposals also stated that "projects selected should be completed within one year after signature of the contract". The word "contract" referred to the declaration which the recipient of the aid was required to sign in order for the grant of the aid to take effect.

3 On 22 April 1992 the applicant, an undertaking established in Germany which is active in the field of tourism, submitted a project concerning the creation of a databank on ecological tourism in Europe. That databank was

to be called "Ecodata". The applicant was to be responsible for coordinating the project. However, in order to carry out the work, the applicant had to collaborate with three partners, namely the French undertaking Innovence, the Italian undertaking Tourconsult and the Greek undertaking 01-Pliroforiki. The proposal did not specify how tasks would be distributed between those undertakings, but merely stated that they were all "consultants specialised in tourism, as well as in information- and tourism-related projects".

4 According to the proposal, the project would take 15 months. An initial period of four months was to be reserved for the adoption of planning measures (requirements analysis and data determination, database planning, network technical specifications). Subsequently, a period of eight months was to be spent developing the application software and carrying out a pilot phase. The pilot phase was to be accompanied by an initial system evaluation. Finally, three months were to be spent on a final evaluation of the system and system expansion. As regards the pilot phase, the proposal stated that it would consist of system implementation and evaluation in the Member States of origin of the four undertakings participating in the project, namely Germany, France, Italy and Greece. At the end of that phase, the databank was to be accessible to users. As regards the system expansion, the proposal stated that it would involve extension of the databank, in terms of both content and use, to the other Member States.

5 In a letter dated 4 August 1992 the Commission granted ECU 530 000 in aid to the Ecodata project, and requested the applicant to sign and return the "declaration by the beneficiary of the aid" (hereinafter "the declaration"), which was annexed to that letter and contained the conditions for receipt of the aid.

6 The declaration stipulated in particular that 60% of the total amount of aid would be paid when the Commission received the declaration, duly signed by the applicant; the balance was to be paid when the Commission had received and accepted the reports on the performance of the project, namely an interim report to be submitted within three months of the project commencing and a final report, accompanied by accounts, to be submitted within three months of completion of the project and by 31 October 1993 at the latest. The declaration stipulated that the latter date was a compulsory time-limit in the context of the budgetary rules of the Communities. Finally, the declaration stated that failure to observe the time-limits laid down for the submission of reports and necessary documents would amount to a renunciation of the right to payment of the balance of the aid.

7 The declaration was signed by the applicant on 23 September 1992 and received by the Commission on 29 September 1992. The first instalment of the aid was not, however, paid to the applicant upon receipt by the Commission of the signed declaration. Following a telephone conversation on this matter between the applicant and the Commission, a new declaration was sent to the applicant on 18 November 1992 by Mr von Moltke, Director General of Directorate-General XXIII responsible for enterprise policy, trade, tourism and social economics. On the basis of that new declaration, which had the same content as the declaration annexed to the letter of 4 August 1992, the first instalment of the aid was paid in January 1993.

8 By letter of 23 October 1992 the Commission informed the applicant that it assumed that the project had commenced on 15 October 1992 at the latest and that it therefore expected to receive the interim report by 15 January 1993. In the same letter, the Commission also asked the applicant to submit two additional interim reports by 15 April 1993 and 15 July 1993, respectively. Finally, it repeated that the final report was to be presented by 31 October 1993 at the latest.

9 In November 1992 Mr Tzoanos, Head of Division within DG XXIII, invited the applicant and 01-Pliroforiki to a meeting, which took place in the absence of the two other partners in the project. According to the evidence of the applicant, which is not, as such, disputed by the defendant, Mr Tzoanos suggested during that meeting that the majority of the work be entrusted to 01-Pliroforiki and that the majority of funds be allocated to that undertaking.

10 The applicant was also asked to agree to the participation in the project of a German undertaking, Studienkreis für Tourismus, which had not been mentioned in the proposal for the project but was already involved in an ecological tourism project by the name of "Ecotrans". That participation was discussed, in particular, at a meeting at the Commission on 19 February 1993 during which the Commission insisted on the participation of Studienkreis für Tourismus.

11 A few days after the meeting on 19 February 1993, the Ecodata project case was withdrawn from Mr Tzoanos. A disciplinary procedure was subsequently initiated against Mr Tzoanos, together with internal investigations concerning the matters for which he had been responsible. The disciplinary procedure resulted in the dismissal of Mr Tzoanos. In contrast, no irregularities were revealed by the internal investigation concerning the administrative procedure resulting in the grant of aid to the Ecodata project.

12 In March 1993 the applicant, Innovence, Tourconsult and 01-Pliroforiki held a meeting to discuss an agreement on the structure of the project and, in

particular, the distribution of tasks. That agreement was formally concluded on 29 March 1993.

13 The applicant submitted an initial report in April 1993, a second report in July 1993 and a final report in October 1993 (Annex 12 to the application, volume 1). It also invited the Commission to a presentation of the work which had been carried out. That presentation took place on 15 November 1993.

14 By letter dated 30 November 1993 the Commission informed the applicant that:

"... the Commission considers that the report submitted on the [Ecodata] project shows that the work completed by 31 October 1993 does not satisfactorily correspond with what was envisaged in your proposal dated 22 April 1992. The Commission therefore considers that it should not pay the outstanding 40% of its proposed contribution of ECU 530 000 for this project.

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

1. The project is nowhere near complete. Indeed the original proposal provided for a pilot phase as the fifth stage of the project. Stages six and seven respectively were to be System Evaluation and System Expansion (to the twelve Member States) and it is clear from the timetable set out on page 17 of the proposal that these were to be completed as part of the project to be co-financed by the Commission.

2. The pilot questionnaire was manifestly over-detailed for the project in question having regard in particular to 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 and the environment ... .

3. The linking together of a number of databases to establish a distributive database system has not been achieved at 31 October 1993.

4. The type and quality of data from the test regions is most disappointing, particularly as there were only 4 Member States with 3 regions in each. A great deal of such data as there is in the system is either of marginal interest or irrelevant for questions relating to the environmental aspects of tourism particularly at the regional level.

5. These reasons and others which are also apparent, sufficiently demonstrate that the project has been poorly managed and coordinated by

IPK and has not been implemented in a manner which corresponds with its obligations.

..."

15 The applicant expressed its disagreement with the content of that letter, in particular in a letter to the Commission dated 28 December 1993. Meanwhile, it continued development of the project and made several public presentations. On 29 April 1994 the applicant met with representatives of the Commission in order to discuss their differences. By letter dated 3 August 1994 the Commission informed the applicant as follows:

"I am sorry that it was not possible to reply to you directly at an earlier stage following our exchange of letters and [the meeting of 29 April 1994].

... [T]here is nothing in your reply of 28th December which would lead us to change our opinion. However you raise a number of additional matters on which I would like to comment. ...

I now have to inform you that having fully considered the matter ... I see little point in our having a further meeting. I am therefore now confirming that we will not, for the reasons set out in my letter of 30 November and above make any further payment in respect of this project.

...". '

The judgment under appeal

person to whom a measure is addressed to discuss matters connected with the measure in question, such a step should be regarded as a re-examination, even if the meeting did not reveal any new information and was not such as to prompt the Commission to adopt a different position.

The appeal

state reasons laid down in Article 190 of the EC Treaty (now Article 253 EC) by taking 31 October 1993 as the deadline for submitting the report, without taking account of its observations in that regard. According to the applicant's second plea, the Court of First Instance also failed to give reasons for not taking into consideration Mr Tzoanos's remarks of 19 February 1993. By its third and fourth pleas, the applicant submits that the Court made errors of assessment, first, in that it relied upon facts and findings that were incorrect, and secondly in that it took 31 October 1993 as the deadline for submission of the report. By its fifth plea, IPK alleges that the Court erred in law in its appraisal of the remarks made by Mr Tzoanos on 19 February 1993 and by its sixth and final plea, it alleges that the Court applied the principle of proportionality incorrectly.

on the abuse by the institutions of their powers, and that such abuse resulted from the fact that, between November 1992 and February 1993, certain Commission officials behaved in such a way as to prevent the applicant from engaging in proper cooperation with its partners before March 1993.

Referral of the case to the Court of First Instance