In Case T-263/97,
GAL Penisola Sorrentina, whose registered office is in Naples (Italy), represented by G.L. Lemmo and V. Mormile, of the Naples Bar, 31 Via del Parco Margherita, Naples,
applicant,
v
Commission of the European Communities, represented by J.M. Flett and F.P. Ruggeri Laderchi, of its Legal Service, acting as Agents, with an address for service at the Chambers of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for annulment of Commission Decision C (97)1261, of 15 May 1997, amending Decision C (95)444/3 of 5 April 1995, concerning the granting of a European Agricultural Guidance and Guarantee Fund - (EAGGF), guidance section, of the European Regional Development Fund (ERDF)and the European Social Fund (ESF)intended for an operational programme forming part of the Leader II initiative in the Campania Region for areas falling within the scope of Objective No 1 in Italy,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of: R. García-Valdecasas, President, P. Lindh and J.D. Cooke, Judges,
Registrar: H. Jung,
makes the following
Order
Legal background
Basic Regulation and Implementing Regulation
1 The rules concerning the furtherance of economic and social cohesion provided for in Article 130a of the EC Treaty (now, after amendment, Article 158 EC)were laid down by Council Regulations (EEC)No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 185, p. 9, the Basic Regulation)and Council Regulation No 4253/88 of 19 December 1988 laying down provisions for implementing the basic Regulation (OJ 1988 L 374, p. 1, the Implementing Regulation).
2 The Basic Regulation and the Implementing Regulation were amended respectively by Council Regulations (EEC)No 2081/93 and No 2082/93 of 20 July 1993 (OJ 1993 L 193, p. 5 and p. 20 respectively), particularly with regard to their provisions cited below.
3 Article 1 of the Basic Regulation sets the priority objectives for the Community's action. It defines objectives No 1 and No 5(b)as promoting respectively the development and structural adjustment of regions whose development is lagging behind and of rural areas.
4 Article 5 of the Basic Regulation sets out the various possible forms of assistance, including the joint financing of operational programmes. Article 5(5)states that that assistance is to be undertaken on the initiative of the Member States or the Commission in agreement with the Member State concerned.
5 Article 11 of the Implementing Regulation provides that in accordance with Article 5(5)of Regulation (EEC)No 2052/88, the Commission may decide to propose to the Member States that they submit applications for assistance in respect of measures of significant interest to the Community. Under Article 14 of the Implementing Regulation, [A]pplications for assistance from the Structural funds [...] shall be prepared by the Member State or by the competent national, regional, local or other authorities designated by it and shall be submitted to the Commission by the Member States or by any body it may designate to do so. Paragraph 3 of that article provides that the Commission is to examine applications from different angles and then decide on assistance from the Funds provided that the requirements of that article are fulfilled.
6 Article 25 of the Implementing Regulation provides that the Commission and the Member States shall ensure effective monitoring of implementation of assistance from the Funds, geared to the Community support framework and specific operations. That monitoring is to be carried out, in particular, by committees established for that purpose (the monitoring committees). The monitoring committees are created within the framework of the partnership, by agreement with the Member State concerned and the Commission. The Commission and, where appropriate, the European Investment Bank (EIB)may delegate representatives to those committees.
7 Article 25(5)states:
[T]he monitoring committee shall, if necessary, without modifying the total amount of the Community contribution and within harmonised limits by Objective, adjust the procedure for granting assistance as initially approved, as well as, in conformity with available resources and budgetary rules, the financing plan envisaged, including any transfers between Community sources of finance and the consequential adjustments of the rates of assistance. The harmonised limits by objective referred to above shall be established by the Commission according to the procedure referred to in Title VIII and included in the Community support frameworks.
These amendments shall be notified immediately to the Commission and the Member State concerned. They shall become effective as soon as confirmation has been provided by the Commission and the Member State concerned; such confirmation shall be given within a period of 20 working days from receipt of this notification, the date of which will be confirmed by the Commission by acknowledgement of receipt.
Other amendments required shall be decided by the Commission, in collaboration with the Member State concerned, after the monitoring committee has delivered its opinion.
Leader II Community initiative
8 On 1 July 1994, the Commission published in the Official Journal of the European Communities a notification to the Member States laying down the guidelines for global subsidies or integrated operational programmes for which they are invited to submit applications for assistance under a Community initiative for rural development (OJ 1994 C 180, p. 48, the Communication). One of the aims of this initiative known as Leader II and based on Article 11 of the Implementing Regulation, is to stimulate innovative measures by those, whether public or private, engaged at local level in all sectors of rural activity (point 6 of the Communication).
9 The Leader II initiative is financed jointly by the Member State concerned and the Community (point 20 of the Communication).
10 Local action groups (LAGs), that is to say groups made up of public and private partners having drawn up a joint strategy and innovative measures to develop a rural territory of local dimension (less than 100 000 inhabitants, as a rule), and other joint private or public actors from the rural environment (the Joint Actors or JAs)may benefit from the Leader II initiative. This initiative is applied in rural areas falling within the scope of Objective 1 and Objective 5(b)(point 8 of the Communication).
11 Point 16(b)of the Communication provides that [T]he individual selection of the projects and beneficiaries and the financial and administrative management of the regional Leader programme falls within the exclusive competence of these partners, who must, however, act in compliance with Community policies, criteria for the eligibility of measures under the Structural Funds and permissible rates of assistance.
12 Under point 17, unless other arrangements are agreed through the partnership, monitoring is entrusted to the monitoring committee for Objective 1 or to the monitoring committee for Objective 5(b)which has technical or territorial responsibility. National coordination and the monitoring committee in which the Commission will participate, constitute the first level where the exchange of experience will operate.
Background to the application
First phase of the Campania Leader II programme
13 Following publication of the Communication, the Campania Region in Italy decided to participate in the Leader II initiative.
14 In decision No 169 of 7 November 1994, the Giunta Regionale (Regional Council)of Campania approved the regional programme for implementing the Leader II initiative.
15 On 4 November 1994, the Italian Republic applied to the Commission for aid under the Community financial assistance scheme for areas falling within the scope of Objective 1, to be used for an operational programme under the Leader II initiative for the Region of Campania (the Campania Leader II programme).
16 The Commission approved the Campania Leader II programme in Decision C (95)444/3 of 5 April 1995 concerning the granting of assistance from the European Agricultural and Guidance Fund (EAGGF), guidance section, of the European Regional Development Fund (ERDF)and the European Social Fund (ESF)to be used for an operational programme under the Leader II Community initiative in the region of Campania for areas in Italy falling within the scope of Objective 1 (the decision approving the Campania Leader II programme). That aid amounted to 25.82 million ecus.
17 Point 1.3 of the Campania Leader II programme specified as an area for action all territories classified as mountain areas or less-favoured areas within the meaning of Council Directive 75/268/EEC of 28 April 1975 on mountain and hill farming and farming in certain less-favoured areas (OJ 1975 L 128, p. 1), and at the same time, on the basis of socio-economic criteria, defined seven priority areas for action to avoid excessive dispersion of the available resources. It did however state that the list of priority areas for action did not preclude other territories classified as less favoured mountain areas within the meaning of Directive 75/268 from possibly being beneficiaries of action under the Campania Leader II programme, provided that such action was fully justified having regard to that programme and that the body proposing that action was credible.
18 These areas did not necessarily correspond to a defined administrative unit. Some of them included the territory of one or several comunità montane. The comunità montana (mountain community)is an administrative unit grouping together various districts within the areas classified as mountain areas. In total, the seven priority areas for action comprised 20 mountain communities.
19 One of these priority areas for action, the Penisola Sorrentina-Amalfitana (the Sorrento-Amalfi peninsula)included the territory of two comunità montane, the Penisola Amalfitana (in the province of Salerno)(the Comunità of Amalfi)and the Penisola Sorrentina (in the province of Naples)(the Comunità of Sorrento).
20 Point 6.1 of the Campania Leader II programme provided that only the local action plans (LAPs)placed first in each priority area for action would be selected.
21 The applicant, an association constituted under Italian law comprising the Naples Chamber of Commerce, the Confcooperative Napoli, the Coldiretti Napoli, the Aprol (Association of oil producers), the Aprolat (Association of milk producers)and the AGCI (General association of Italian cooperatives), in its capacity as a LAG, submitted a LAP for the comunità of Sorrento only.
22 In an opinion published in No 24 of the Bolletino Ufficiale della Regione Campania (the BURC)on 25 May 1995, the Regional Council of Campania selected and approved the LAPs with a view to financing them.
23 By decision No 8215/96 of 18 October 1996, it placed the LAP for the Community of Sorrento, submitted by the applicant, in second position, in the priority area of the Penisola Sorrentina-Amalfitana. In accordance with the selection criteria laid down in the Campania Leader II programme (point 6.1), by decision No 9919/96 of 13 December 1996 it approved the LAP placed first in the aforementioned priority area for action, submitted by the Penisola Amalfitana LAG association on behalf of the comunità of Amalfi, and therefore rejected the applicant's LAP.
24 The applicant applied to the Administrative Court of Campania to have that decision annulled.
Second phase of the Campania Leader II programme
25 Taking the view that seven LAPs had already been selected and been granted financial assistance for an amount which was slightly higher than the prescribed one third of the advance, the Region of Campania and the monitoring committee considered that it would be expedient to revive the implementation of the Leader II initiative by extending the class of potential beneficiaries.
26 To that end, at its meeting on 13 February 1997, pursuant to Article 25(5)of the Implementing Regulation, the monitoring committee approved some amendments to the Campania Leader II programme, in particular with regard to point 1.3 concerning the territory for action. The monitoring committee's decision including those amendments is worded as follows:
Leader II Regional Programme
New wording of paragraph 1.3 replacing the previous wording
Having regard to the size and the available resources, it is considered appropriate to extend assistance to the entire territory of the Comunità Montane (table 1)in pursuit of the aim of distributing as widely as possible the innovative measures which may be promoted and supported.
There are 340 of these communes, that is to say 62% of all the communes in Campania. The resident population on 31 December 1991 was around 1.2 million [inhabitants]. It covers an area of around 960 000 hectares.
Selection of the LAPs in implementation of the first opinion adopted at the end of 1995 resulted in a choice of seven which, in their entirety involve the territory of ten Communities (table 2a).
On the basis of the results obtained in this first implementation phase of the Leader II programme (Campania), it was considered to be justified and expedient that for the second phase the relevant territorial area for which proposals were to be made should consist solely of the Mountain Communities.
There is no justification in this new phase for including the territory of the Comunità [of Sorrento], inasmuch as the social and economic indicators rank it as one of the most developed in Campania and that having regard in particular to the limited scope of the territories concerned, it should be considered that the approval of the LAP for the neighbouring Comunità [of Amalfi] should serve as an example and be extended to the [Comunità of Sorrento] also.
As a result of that choice, 16 Comunità Montane are participating in the second phase (table 2b).
27 It follows from the foregoing that the 16 mountain communities accepted for participation in the second phase of the Campania Leader II programme were selected by the monitoring committee as follows: during the first phase of the Campania Leader II programme, 20 of the 27 comunità montane classified as mountain areas or less-favoured areas in Campania had been given priority status and were grouped together into seven priority areas for action. From the LAPs submitted in these priority areas for action, seven LAPs concerning the territory of 10 comunità montane were selected. During the second phase of the Campania Leader II programme, the monitoring committee decided to exclude the 27 comunità montane classified as mountain areas or less-favoured areas in Campania, 10 of which had had a LAP chosen for them during the first phase of the programme, and for the reasons stated above, the Comunità of Sorrento, despite the fact that no LAP had been approved in that comunità montana during the first phase.
28 The changes approved by the monitoring committee were notified to the Commission which confirmed them, in accordance with Article 25(5)of the Implementing Regulation, by Decision C (97)1261 of 15 May 1997, confirming a decision of the monitoring committee and amending the decision approving the Campania Leader II programme (the contested decision).
29 The contested decision was published in BURC No 37 on 28 July 1997.
30 It is worded as follows:
The Commission
having regard to the Treaty establishing the European Community;
having regard to Council Regulation (EEC)No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC)No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, (OJ 1998 L 374, p. 1), last amended by Regulation (EEC)No 3193/94 (OJ 1994 L 337, p. 11), in particular Article 14(3)and paragraph two of Article 25(5)thereof;
whereas by Decision C (95)444/3 of 5 April 1995, the Commission adopted an operational programme under the Leader II initiative in the Region of Campania for areas in Italy which were beneficiaries of Objective 1;
whereas, pursuant to the first and second paragraphs of Article 25(5)of Regulation (EEC)No 4253/88, the monitoring committee shall, if necessary, without modifying the total amount of the Community contribution and within harmonised limits by objective, adjust the procedure for granting financial assistance as initially approved, as well as, in conformity with available resources and budgetary rules, the financing plan envisaged, including any transfers between Community sources of finance and the consequential adjustments of the rates of assistance, and whereas that decision of the monitoring committee, duly notified to the Commission and the Member State concerned, is subject to confirmation by the Commission;
whereas at its meeting on 13 February 1997, the monitoring committee for the Campania Leader II programme approved changes to the programme; whereas in a letter dated 19 February 1997, reference No 5217/SP, the chairman of the monitoring committee notified the Commission of the approved changes in order that they might be confirmed by the Commission;
whereas it is appropriate to confirm those changes;
has adopted the present decision:
Article 1
The operational programme for the Leader II initiative in the Campania region has been modified in respect of the parts relating to point 1.3 concerning "The territorial area for action" and to point 6.1 concerning "Admissibility and assessment of applications for financing", as provided in the annex to this decision.
Article 2
This decision is addressed to the Italian Republic.
31 The decision made by the monitoring committee and notified by it is reproduced in Annex A to the contested decision.
32 By decision No 5432 of 26 June 1997, the Regional Council, first, took formal note of the changes made to the Campania Leader II programme by the contested decision and, second, approved an opinion on the Guidelines for submitting local action plans (LAPs)and partial executive plans concerning implementation of the Leader II regional programme - Second phase (the decision of the Regional Council). That opinion stated that the Community of Sorrento and the Community of Amalfi were excluded as areas for action in the second phase of the Campania Leader II programme. The Regional Council's decision was published in No 38 of the BURC on 4 August 1997 with the contested decision and the opinion in question annexed thereto.
33 The applicant applied to the Campania Administrative Court to have that decision annulled.
Procedure and claims
34 By application lodged at the Court Registry on 2 October 1997, the applicant brought the present action.
35 The applicant claims that the Court should:
- allow the application;
- annul the contested decision;
- order the Commission to pay the costs.
36 The Commission contends that the Court should:
- declare the application inadmissible, or, in the alternative, unfounded;
- order the applicant to pay the costs.
Admissibility
37 Under Article 113 of the Rules of Procedure, the Court of First Instance may at any time of its own motion consider whether there exists any absolute bar to proceeding with the case and shall give its decision in accordance with Article 114(3)and (4). One such bar, according to consistent case-law, may arise from the requirements for admissibility of an action laid down in the fourth paragraph of Article 173 of the EC Treaty (now, after amendment, the fourth paragraph of Article 230 EC)(judgment of the Court of Justice in Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraph 23 and order of the Court of First Instance in Case T-114/96 Biscuiterie-Confiserie LOR and Confiserie du Tech v Commission [1999] ECR II-913, paragraph 24).
38 In the present case, the Court of First Instance considers itself to be sufficiently informed by the documents submitted and the explanations provided in the written proceedings to be able to give a decision on the present application without opening the oral procedure.
The allegation that the action was brought out of time
Arguments
39 The Commission contends that the applicant did not submit the application within the two-month period, laid down in Article 173, last paragraph, of the EC Treaty, to run from the date on which it became aware of the contested decision.
40 The Commission maintains that the contested decision had come to the knowledge of the applicant before it was published in the BURC on 28 July 1997, although admitting that it could not specify on what date. It states, first, that the applicant is composed of associations whose purpose, in particular, is to monitor the political and administrative developments relating to agriculture in the Campania Region. It further maintains that participation in the Leader II initiative ranked among the applicant's aims and objects and that the decision of the Regional Council, published on 4 August 1997 and to which the contested decision is annexed, was adopted on 26 June 1997.
41 The application, submitted on 4 October 1997, was therefore out of time.
42 The applicant claims that the contested decision and the decision of the Regional Council came to its knowledge when they were published in No 38 of the BURC on 4 August 1997, and that the Commission has not proved that they had come to its knowledge at an earlier date. In this respect, the Commission cannot rely merely on circumstantial factors.
Findings of the Court of First Instance
43 According to the last paragraph of Article 173 of the Treaty, the proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter.
44 The contested decision was addressed to the Italian Republic and the Commission did not notify the applicant thereof nor was it published in the Official Journal. The factor causing time to run for the purposes of an action for annulment of that decision is therefore the applicant's knowledge of it.
45 In accordance with Annex II to the Rules of Procedure of the Court of Justice and Article 102(2)of the Rules of Procedure of the Court of First Instance, for a party who is resident in Italy, the two-month time-limit laid down in the last paragraph of Article 173 of the Treaty is extended by ten days.
46 In the present case it is established that the contested decision was published in the BURC on 28 July 1997. If the view is taken that the period started to run on that date, the present action, brought on 2 October 1997, must be declared admissible.
47 According to settled case-law, it is for the party pleading that the action is out of time to provide evidence of the date on which the event causing time to begin to run occurred (judgment of the Court of First Instance in Joined Cases T-70/92 and T-71/92 Florimex and VGB v Commission [1997] ECR II-693, paragraph 74).
48 In the present case, it must be observed the Commission has not provided any evidence in support of its assertion that the contested decision came to the applicant's knowledge on a date prior to 28 July 1997. Accordingly, the action must be held to have been brought within the time-limit laid down in the last paragraph of Article 173 of the Treaty, extended under Annex II to the Rules of Procedure of the Court of Justice and Article 102(2)of the Rules of Procedure of the Court of First Instance.
The question whether the contested decision was of direct and individual concern to the applicant
Arguments
49 The Commission argues that the contested decision was not of individual and direct concern to the applicant.
50 Firstly, the applicant, which is not the addressee of the contested decision as it was only notified to the Italian Republic, is not affected by that decision by reason of certain attributes peculiar to it or of a factual situation which distinguishes it from any other person, in the sense contemplated by the case-law (judgment of the Court of Justice in Case 25/62 Plaumann v Commission [1963] ECR 197).
51 The applicant is contesting a decision of the Commission in which it modified the procedures for granting financial assistance arising from the decision approving the Campania Leader II programme, and, in particular, the area for action. Any body having the characteristics of a LAG and any JA could apply for assistance for a LAP under the Leader II initiative. The applicant therefore does not have any particular characteristic that distinguishes it from the other local entities that intended to participate in the second phase of the Campania Leader II programme in the whole of the territory of the region in question.
52 In that regard, the fact that the applicant had participated in the first phase of that programme does not distinguish it from the other potential beneficiaries because participation in the second phase of the programme is not dependent on having submitted a plan at the time of the first phase.
53 The applicant therefore belongs to an open category of local entities of which the Commission was not aware and could not have been aware. It acts only in its objective capacity as an association concerned by rural issues in the Penisola Sorrentina-Amalfitana.
54 Finally, the present case is different from that which gave rise to the judgment of the Court of First Instance in Case T-465/93 Consorzio Gruppo di Azione Locale Murgia Messapica v Commission [1994] ECR II-361, in which the application submitted by a LAG against a decision by the Commission, addressed to a Member State, excluding the plan submitted by that LAG from any assistance under the Leader I initiative was declared admissible because the applicant had participated in the approval procedure.
55 Secondly, the Commission argues that the contested decision is not of direct concern to the applicant. It points out that the applicant's exclusion from the second phase of the Campania Leader II programme does not result from the contested decision but from the decision of the Regional Council.
56 In that regard, the Commission points out that the Regional Council had a wide discretion. First, it was not required by law to launch the second phase of the Campania Leader II programme. Second, it could, in particular have laid down conditions as to the operators accepted for participation or exclude those who had already submitted a LAP during the first phase.
57 That argument is confirmed by the fact that the applicant brought an action to the Administrative Court of Campania seeking annulment of the decision of the Regional Council. According to the Commission, those national proceedings are appropriate, as the applicant may invoke before the Italian courts all the arguments pertaining to the illegality of the decisions at issue, including those which concern the alleged illegality of the contested decision. If necessary, the Italian courts could refer a question for a preliminary ruling, in accordance with Article 177 of the EC Treaty (now Article 234 EC).
58 The Commission concludes that in any event, if the contested decision had not been taken and if the decision of the Regional Council had not excluded the Penisola Sorrentina-Amalfitana, the LAP submitted by the applicant would not necessarily have been able to benefit from Community financing as it would have been subject to assessment by the Region of Campania.
59 The applicant states that the contested decision is of direct and individual concern to it, in accordance with the judgments of the Court of Justice in the case of Plaumann v Commission cited above, and Case C-157/90 Infortec v Commission [1992] ECR 1-3525 and the judgment in the case of Consorzio Gruppo di Azione Locale Murgia Messapica v Commission, cited above.
60 First, the applicant argues that it is individually concerned because the contested decision excludes from the Compania Leader II programme the comunità of Sorrento for which it had submitted a LAP which, unlawfully, was not selected during the first phase. It was thus prevented from participating in the new selection and from obtaining financing during the second phase. The fact that its plan had been placed in second position, in the priority area of Penisola Sorrentina-Amalfitana during the first phase of the Campania Leader II programme, must be taken into consideration in the same way as was done in the case giving rise to the judgment in Consorzio Gruppo di Azione Locale Murgia Messapica v Commission, cited above.
61 Secondly, with regard to the Commission's argument that the applicant is not directly concerned, the applicant responds by stating that its application is neither directed against the decision of the Regional Council nor against other decisions of the Region of Campania, but solely against the contested decision.
Findings of the Court
62 Under Article 173, fourth paragraph, of the EC Treaty, the admissibility of an application submitted by a natural or legal person against a decision which is addressed to another person is conditional on it being of direct and individual concern to the applicant.
63 On the question whether the applicant is individually concerned by the contested decision, it should be remembered that, according to settled case-law, persons other than the addressees of a decision can only claim to be individually concerned if that decision affects them because of certain attributes peculiar to them or because of a factual situation which distinguishes them from any other person and thereby individualises them in a way similar to that of the addressee (judgment in Plaumann v Commission cited above and paragraph 25 of the judgment in Consorzio Gruppo di Azione Locale Murgia Messapica v Commission).
64 In that regard, it should be noted that in the contested decision the Commission excludes the territory of some comunità montane in areas for action for which LAGs or JAs are liable to receive financial assistance from the Community during the second phase of the Campania Leader II programme. The applicant is a LAG acting on behalf of one of the comunità excluded by the contested decision, that is to say the Community of Sorrento. It is thus excluded from the opportunity to participate in the second phase of the Campania Leader II programme. Therefore, the contested decision does not concern the applicant in a way which is different from the other LAGS and JAs in the Comunità of Sorrento or in any other of the excluded comunità, but is to be seen, with respect to the applicant, as a measure whose effects are capable of concerning various categories of individuals in an objective, general and abstract manner.
65 Accordingly, the applicant could only be affected by the contested decision in the same way as any other LAG or any other JA from the excluded communities which are currently or potentially in an identical situation (orders of the Court of First Instance in Case T-117/94 Associazione Agricoltori della Provincia di Rovigo and Others v Commission [1995] ECR II-455, paragraph 25 and Case T-585/93 Greenpeace and Others v Commission [1995] ECR II-2205, paragraphs 54 and 55).
66 Moreover, the applicant is not justified in relying on the judgment in Consorzio Gruppo di Azione Locale Murgia Messapica v Commission, cited above, in which the Court declared admissible an action brought by a group of entrepreneurs against a decision addressed to the Italian Republic, in which the Commission approved a series of plans under the Leader I programme, excluding that of the applicant. In that judgment, the Court held that certain factors could have given rise, to the applicant's benefit, of interests, the loss of which was of individual concern to it. These were, on the one hand, the provisional acceptance by the Italian Minister for Agriculture and Forests and the applicant's plan being placed second in priority, and, on the other hand, the applicant's repeated attendance at the meetings arranged by the Commission and that Minister, in accordance with the rules applicable to the Leader I programme and therefore to the procedure resulting in the adoption of the contested decision.
67 However, the situation in the present case is different.
68 First, it should be noted that unlike the decision at issue in the abovementioned case, the contested decision confines itself to modifying the areas liable to benefit from the second phase of the Campania Leader II programme and therefore affects in the same way all the LAGS and JAs from the areas thus excluded which intended to participate in such a programme.
69 Second, it should be observed that unlike the applicant in the abovementioned case, the applicant in this case had never been in contact with the Commission before the contested decision was adopted, the applicable rules not providing that interested persons must be heard prior to amending the procedures for granting financial assistance (Article 25 of the Implementing Regulation).
70 Finally, the fact that the applicant's LAP had been placed in second position at the time of the first phase of the Campania Leader II programme is irrelevant as the second phase of that programme is independent of the first and the procedures for granting financial assistance in one phase are different in the other.
71 It follows from the foregoing that the circumstances invoked by the applicant are not sufficient to distinguish it from any other person and therefore do not enable it to be regarded as being individually concerned by the contested decision for the purposes of Article 173 of the Treaty.
72 Furthermore, it should be added that the applicant has the right, which it has exercised, to contest before the national courts both the decision to reject the plan it submitted during the first phase of the Campania Leader II programme and the decisions taken by the Italian authorities pursuant to the contested decision and inviting the interested parties to submit their plans under the second phase of the Campania Leader II programme. Therefore, the applicant's rights are protected by the national courts which, if necessary, can refer a question to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty.
73 It follows that this application must be dismissed as inadmissible, without there being any need to rule on the question whether the contested decision is of direct concern to the applicant.
Costs
74 Under Article 87(2)of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if applied for in the successful party's pleadings. Since the applicant has been unsuccessful and the Commission applied for costs, the applicant must bear his own costs and pay those of the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicant is ordered to pay the entire costs.
