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

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 12 February 2009 ¹(1)

Joined Cases C-445/07 P and C-455/07 P

Commission of the European Communities

v

Ente per le Ville vesuviane

and

Ente per le Ville vesuviane

v

Commission of the European Communities

(Appeals European Regional Development Fund (ERDF) Closure of financial assistance Admissibility of an appeal Procedural issue Locus standi Direct concern)

I Introduction

1. The proceedings relate to a dispute between Ente per le Ville vesuviane ('the Ente') and the Commission of the European Communities ('the Commission') concerning the closure of financial assistance from the European Regional Development Fund (ERDF) for Ente projects.
2. The Ente is a corporation comprising the Italian State, the Region of Campania, the Province of Naples and a number of municipalities. It was set up by Italian Law No 578 of 29 July 1971 to preserve and enhance the architectural ensemble consisting of the Ville vesuviane, built in the eighteenth century, and their dependencies.
3. By judgment of 18 July 2007 ('the judgment under appeal'), (2) the Court of First Instance dismissed as unfounded the action by which the Ente had contested the Commission's decision on the closure of financial assistance from the ERDF.
4. In its appeal, the Ente continues to seek the annulment of that decision. The Commission has also lodged an appeal in which it claims that the Court of First Instance should have dismissed the action as inadmissible, since the Ente was not directly concerned by the decision and therefore lacked the requisite standing to challenge it.
5. The present proceedings thus provide an opportunity to consider in greater depth the question of the direct concern of applicants in connection with assistance by the ERDF.

II Legal framework

6. The Court of First Instance set out the legal framework as follows at paragraphs 1 to 3 of the judgment under appeal:

1. The European Regional Development Fund (ERDF) was established by Council Regulation (EEC) No 724/75 of 18 May 1975, which was amended a large number of times and replaced by Council Regulation (EEC) No 1787/84 of 19 June 1984 from 1 January 1985. In 1988 the system of the Structural Funds was reformed by Council Regulation (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.

2. On 19 December 1988 the Council adopted Regulation (EEC) No 4254/88 laying down provisions for implementing Regulation No 2502/88 as regards the European Regional Development Fund. Regulation No 4254/88 replaced Regulation No 1787/84. It was amended by Council Regulation (EEC) No 2083/93 of 20 July 1993.

3. Article 12 of Regulation No 4254/88, entitled 'Transitional provisions', is worded as follows: 'Those portions of the sums committed for the granting of assistance in respect of projects decided on by the Commission before 1 January 1989 under the ERDF which have not been the subject of a request for final payment to the Commission by 31 March 1995 shall be automatically released by the Commission by 30 September 1995 at the latest, without prejudice to those projects which are subject to suspension for judicial reasons.'

III Facts and proceedings before the Court of First Instance

7. At the request of the Ente, the Italian State applied to the Commission for financial assistance from the ERDF for investment in infrastructure aimed at restoring three of these villa complexes. By decision of 18 December 1986 addressed to the Italian Republic ('the decision to grant'), (3) the Commission granted financial assistance from the ERDF for the development of the villa complexes for the purposes of tourism.
8. The decision to grant names the Ente as the beneficiary of the assistance (third recital in the preamble to the decision and Article 3 thereof) and designates it as the person responsible for the application and for execution of the project (the annex to the decision).
9. Under Article 4 of the decision to grant, the Commission can reduce or annul the financial assistance or require it to be repaid where the conditions listed in the decision, in particular with regard to the timeframe for implementation of the project, are not met. Furthermore, Article 4 provides that annulment or recovery may not be effected until the beneficiary has been consulted.
10. The Commission made two part payments in 1988 and 1990, pursuant to the decision.
11. Under Article 12 of Regulation No 4254/88, as amended by Regulation No 2083/93, the requests for final payments from the ERDF had to be submitted to the Commission by 31 March 1995, unless a project was subject to suspension for judicial reasons.
12. By letter of 29 March 1995 the Italian State applied to the Commission for an extension of this time-limit with reference to Article 12 of Regulation No 4254/88, on the grounds that the projects had been subject to suspension for judicial reasons and therefore a request for final payment could not be submitted in good time.
13. By letter of 12 October 2001 the Commission informed Italy that it intended to close the financial assistance. The Commission concluded that the time-limit for presenting accounts under Article 12 of Regulation No 4254/88 had expired and, contrary to the view of the Italian authorities, there were also no grounds for extending the time limit under Article 12 of Regulation No 4254/88.
14. By letter of 13 March 2002 the Commission communicated to Italy its final decision to order the closure of financial assistance from the ERDF based on requests for payment submitted before 31 March 1995 ('the contested decision'). (4)
15. Since Italy had, by that time, submitted only a request for payment of a partial amount which was less than the part payments already received as an advance, it is now required to repay the resulting difference and cannot receive any further payments from the ERDF for the projects in question.
16. In the contested decision the Commission pointed out that neither that decision nor any other provision of Community law placed the Member State under an obligation to require repayment from the Ente, as the beneficiary, of the amounts already paid out.
17. The Ente brought an action against the Commission's decision of 13 March 2002 before the Court of First Instance, seeking its annulment.

IV The judgment under appeal

18. In the judgment under appeal the Court of First Instance first ruled that the action was admissible, contrary to the view of the Commission. The Ente was directly concerned by the contested decision and consequently had standing for the purposes of the fourth paragraph of Article 230 EC.
19. As to the merits, the Court of First Instance dismissed the Ente's action for annulment as unfounded. By its first plea in law the Ente had claimed that the Commission had wrongly concluded that the conditions for a delay for judicial reasons under Article 12 of Regulation No 2083/93 had not been met and that the request for payment had therefore not been submitted in good time. In this respect the Court of First Instance upheld the contested decision of the Commission.
20. By its second plea in law the Ente had alleged that it had not been consulted before the Commission's decision was adopted, this being an infringement of its rights of defence. The Court of First Instance found that although the Ente had a right to be consulted the failure to consult it could not result in the annulment of the contested decision in the present case, as the Ente had not submitted anything, in response to a question put by the Court of First Instance, which could have resulted in a different decision even if the Commission had consulted the Ente.
21. In addition, the Ente alleged insufficient examination of the facts by the Commission and an inadequate statement of reasons in the contested decision. However, in this respect too the Court of First Instance regarded the action as unfounded.

V The appeals

22. The appeal lodged by the Ente is based on two grounds of appeal. In its first ground of appeal it essentially alleges an infringement of Article 12 of Regulation No 4254/88. In the second ground of appeal it challenges the Court of First Instance's conclusion that the Commission did not infringe the Ente's right to be consulted when it adopted the contested decision.
23. The Commission has also lodged an appeal. In that appeal it complains that the Court of First Instance failed to dismiss the action as inadmissible on the grounds that the Ente lacked the requisite standing.
24. In detail, the parties are seeking the following forms of order:
25. In Case C-455/07 P, the appeal brought by the Ente,

the Ente claims that the Court should

set aside in part the judgment under appeal and, consequently, annul Commission Decision D(2002) 810111 of 13 March 2002, and if necessary and in so far as is reasonable, the notification of 12 October 2001 of the Directorate General for Regional Policy of the Commission;

in the alternative, set aside in part the judgment under appeal and refer the case back to the Court of First Instance for a ruling on the substance of the dispute in the light of the directions which the Court sees fit to give for that purpose;

order the Commission to pay the costs of both the present proceedings and the proceedings at first instance.

The Commission contends that the Court should dismiss the Ente's appeal and order the Ente to pay the costs.

26. In Case C-445/07 P, the appeal brought by the Commission,

the Commission claims that the Court should

set aside the judgment under appeal in so far as it declares that the action for annulment brought by Ente per le Ville vesuviane is admissible;

declare that the action brought by Ente per le Ville vesuviane for annulment of Commission Decision D(2002) 810111 is inadmissible;

order Ente per le Ville vesuviane to pay the costs of the present proceedings and of the proceedings at first instance.

The Ente contends that the Court should dismiss the Commission's appeal and order the Commission to pay the costs.

VI Assessment

A The appeal brought by the Commission

27. In its appeal the Commission takes the view that the Court of First Instance should not have taken a decision on the merits in the dispute, but should have dismissed the action as inadmissible.

1. Admissibility of the appeal

28. The admissibility of the appeal brought by the Commission could be questionable, since in dismissing the action as inadmissible the Court of First Instance gave a judgment which was effectively favourable to the Commission.
29. Although the Ente has not alleged that the Commission's appeal is inadmissible, the Court must examine this of its own motion. (5) The Commission also examines the question of the admissibility of its appeal in detail in its observations.
30. Under the first paragraph of Article 56 of the Statute of the Court of Justice, an appeal may be brought against a final decision of the Court of First Instance and decisions of that Court disposing of a procedural issue.
31. In the view of the Commission, its appeal against the decision of the Court of Instance is admissible as an appeal brought against a decision disposing of a procedural issue.
32. That view cannot be accepted since there was no procedural issue in the present case. Under Article 114 of the Rules of Procedure of the Court of First Instance, (6) for there to be a procedural issue it is essential that an objection of inadmissibility be raised by a separate document. In the cases in which the Court concluded that there was a decision disposing of a procedural issue within the meaning of the first paragraph of Article 56 of the Statute of the Court of Justice, the objection of inadmissibility was also, so far as is apparent, raised by a separate document in each case. (7)
33. The requirement relating to a separate document guarantees a transparent procedure, as it ensures that the application can easily be identified as such. This is important particularly because a procedural issue interrupts the main proceedings. The separate document must therefore make it clear to the Court of First Instance whether or not an objection is to be made the subject of a procedural issue. If a procedural issue could be raised by other documents, it would not be absolutely clear whether or not a procedural issue was involved.
34. However, in the present case it is common ground that the inadmissibility of the action was not claimed in a separate document. Consequently, there was no procedural issue, and the Court of First Instance's decision cannot therefore be classified as a decision disposing of a procedural issue.
35. Nevertheless, the appeal brought by the Commission is admissible as a decision directed against a final decision of the Court of First Instance: under the second paragraph of Article 56 of the Statute, any party which has been unsuccessful, in whole or in part, in its submissions may bring an appeal.
36. In the present case the Commission's principal claim in the proceedings before the Court of First Instance was that the action brought by the Ente should be dismissed as inadmissible. Only its alternative application sought to have the action dismissed as unfounded.
37. Since the Court of First Instance expressly ruled in its judgment that the action was admissible and dismissed it solely on the ground that it was unfounded, the Commission's principal application was unsuccessful and only its alternative application was successful. This partial failure renders admissible the appeal brought by the Commission.
38. In an application for interim measures (8) the Court specified the conditions under which an unsuccessful plea of inadmissibility constitutes a partial failure on which an appeal can be based.
39. In these proceedings the appellant had alleged that the original application was inadmissible in its observations before the Court of First Instance without, however, 'formally contending that the application was inadmissible.' (9) The Court of Justice concluded that in such a situation it was not possible to claim in an appeal that the application was dismissed only because it was unfounded but not because it was inadmissible.
40. Where as in the present case a separate claim is made that the action should be dismissed as inadmissible, it must be regarded as a formal plea of inadmissibility which can be challenged by an appeal in the event of failure in this respect.
41. My interim conclusion is consequently that the appeal brought by the Commission is admissible.

2. Merits of the appeal

42. In its appeal the Commission challenges the conclusion of the Court of First Instance that the Ente had the requisite standing.
43. Under the fourth paragraph of Article 230 EC, any natural or legal person may institute proceedings against a decision addressed to another person which is of direct and individual concern to that person. It is common ground that the contested decision is not addressed to the Ente but to the Italian State. Although the contested decision is of individual concern to the Ente, it is uncertain whether it is also of direct concern to it.
44. The Court was called on to take a position on the criterion of direct concern in two judgments which also related to the closure of financial assistance from the ERDF. (10) Both concerned actions brought by Regione Siciliana against Commission decisions by which it had decided to close financial assistance from the ERDF.
45. In those decisions the Court referred to its settled case-law. In accordance with that case-law, the condition that the decision must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 230 EC, requires the contested Community measure to affect directly the legal situation of the individual and leave no discretion to its addressees in implementing it, the adoption of the implementing measures being purely automatic and resulting from Community rules without the application of other intermediate rules. (11)
46. In its Regione Siciliana judgments the Court concluded that the applicants were not directly concerned by the Commission's decision. In that respect, it based its judgment in particular on the fact that the decision to grant designated the applicants in those cases as 'the authority responsible for the execution of the ERDF project' (12) and 'the authority responsible for the application for financial assistance' (13) and not as '[the person] entitled to the financial assistance'. (14) The position of authority responsible for the application did not have the effect of putting the applicant in a direct relationship with the Community assistance which had been applied for by the Italian Government and granted to the Italian Republic. (15)
47. The Court of First Instance saw differences between the situation underlying this case and those underlying the decisions in the Regione Siciliana cases, which led it to rule that the Ente was directly concerned. Firstly, in the decision to grant the Ente was referred to not merely as the person responsible for execution of the project but also as the beneficiary. Secondly, the discretion available to the Italian State when deciding whether or not to require repayment of the assistance paid was irrelevant since the Italian State had already announced, prior to the Commission decision, that it intended to require repayment of the money and not to provide funds itself. Thirdly, a right of action was necessary so that the Ente could ensure protection of its rights of defence.
48. However, the differences between the situation underlying this case and those underlying the decisions in the Regione Siciliana cases, which the Court of First Instance emphasised in the judgment under appeal, do not support an assessment different from that in the Regione Siciliana cases.
49. In its judgment in Case C-417/04 P Regione Siciliana the Court ruled that Regione Siciliana did not have standing to bring proceedings because the fact of being the authority responsible for the execution of the project did not mean that the applicant 'was itself entitled to the financial assistance'.
50. In the present case the applicant is referred to as the beneficiary in the contested decision. However, the contested decision does not show that the Ente was granted an entitlement to assistance under Community law. Nor did the Court of First Instance assume in the grounds for its judgment that the Ente had an entitlement to assistance. Rather, the Italian State applied to the Commission for assistance from the ERDF for infrastructure measures to be carried out by the Ente, which was granted to that State. Consequently, Italy alone is the applicant, the person entitled and the addressee of the Commission decision. The Commission was also right, in its decision to grant, to designate the Ente accordingly only as the 'beneficiary' and precisely not as the person entitled.
51. However, in its situation as 'beneficiary' the Ente would appear to be more closely associated with the assistance from the ERDF in the present case than the applicants in the Regione Siciliana cases were as mere 'responsible authorities'. It cannot be inferred from the Court's judgment in Case C-417/04 P Regione Siciliana v Commission that only the person entitled to assistance under Community law can have standing to bring proceedings. The Court merely found that a person responsible for a project who is not entitled to assistance lacks standing to bring proceedings. In its previous judgments the Court took as a basis the fact that the contested measure must affect the legal situation of an individual. (16) The issue is thus whether the contested decision affects the legal situation of the Ente as beneficiary even though it was not entitled to the assistance under Community law.
52. In this respect it could be argued that the Ente's legal situation is concerned, since it could be subject to demands for repayment from the Italian State. It has also been held, after all, in connection with Commission decisions requiring Member States to demand repayment of aid incompatible with Community law, that the undertakings concerned have standing to bring proceedings even though they are not entitled to the aid under Community law. However, the Ente would additionally have to be directly concerned by the Commission decision.
53. It is settled case-law that a person who is not the addressee of a Commission decision is directly concerned only where the addressee is under an obligation to implement the Community measure and where that implementation is purely automatic because the addressee is left no discretion in that regard. (17)
54. There is no direct concern where the autonomous will of the addressee interposes itself between the Community decision and its effects on the applicant. (18) Where the decision of the addressee is not legally required either by Community law or the specific Commission decision, but is based on an autonomous decision of the Member State, there is no direct connection between the Commission decision and the applicant.
55. In the present case it is common ground that the Italian Government was not under an obligation to require the Ente to repay the Community assistance. Rather, it was free to decide whether to bear the burden of reimbursing the ERDF itself and to defray out of its own funds the released portion of the Community financing so as to finance the completion of the works. It was precisely under no obligation under Community law to require the Ente to repay the monies, as the Commission also stated explicitly in the contested decision.
56. As Advocate General Ruiz-Jarabo Colomer correctly stated in his Opinion in Regione Siciliana v Commission, this is consistent with the complex structure of the relationships involved in the management of the structural funds. (19) This places the Member States in a position to decide, and assistance from the ERDF therefore establishes a relationship between Commission and Member State. (20) Consequently, from the Commission's perspective the assisted projects are projects of the Member States. It is thus left to each Member State to decide whether the infrastructure project is to be continued if the Community closes its financial assistance.
57. In the judgment under appeal the Court of First Instance concluded that this freedom enjoyed by the Member State in implementing the Commission decision was irrelevant since the Italian Government had declared, before the contested decision was adopted, its intention not to bear the burden of reimbursing the reclaimed amount but to recover it from the Ente. Therefore, the question whether Italy would make the relevant payments, which would no longer be paid from the ERDF, from its own budget was purely hypothetical.
58. In this context the Court of First Instance refers to two judgments of the Court in which it took the view, where discretionary decisions of the addressee were interposed, that an exception applied in cases in which it was established from the outset that the applicant would still be subject to a burden after the addressee's decision. Where the possibility of the Member State implementing a Community measure in a manner which does not impose a burden on the applicant is purely theoretical, because there was, from the outset, no doubt that the national authorities would implement a Community measure in a particular, different manner, the applicant is directly concerned by the Community measure. (21)
59. What is questionable is whether that case-law can be applied to a situation such as the present which concerns ERDF assistance. According to the Court of First Instance, in the present case too Italy had, as the addressee of the contested decision, left no doubt, before its adoption, that it would implement the decision in a manner which placed a burden on the applicant. Therefore, it would appear prima facie possible to apply that case-law. (22)
60. It is of course to be noted that the cases in which the Court emphasised the fact that the discretion of the addressee of a decision as to the implementation was purely theoretical, because there was no doubt as to the nature of the implementation, were based on very specific situations. Whether the statements made in those cases can therefore necessarily be applied to cases such are the present is questionable.
61. In Piraiki-Patraiki (23) the Commission had granted France authorisation, at its request, to impose a system of quotas on imports from Greece without, however, placing it under an obligation to do so. That the addressee of a decision complying with its request will exercise its discretion regarding implementation by not making any use of the decision it has brought about would indeed appear to be purely hypothetical. In such a situation it would not be fair to find that the Commission decision did not impose a direct burden solely on account of the de jure discretion of the addressee of the decision. In that case the Court therefore ruled that certain Greek exporters had standing to bring proceedings with regard to the aspect of direct concern.
62. In Dreyfus (24) the Court concluded, on the basis of an overall assessment of extremely complex objective circumstances and after taking account of the socio-economic context of a Commission decision relating to the grant of Community financing for the export of agricultural products to the Russian Federation, that there was direct concern to a supplier who could in practice only expect from his Russian contracting party payments equal to the funds granted by the Community, even though the contracting party was required to make larger payments under private law. In that case too the Court regarded the purely hypothetical possibility that the applicant's contracting partner would fulfil its contractual obligations, even though it would thereby lose its Community financing, as so remote that it regarded the Commission decision as imposing a direct burden on the applicant supplier as regards individual financing conditions.
63. Consequently, in both cases the assessment of the actual facts led the Court to regard as appropriate narrowly defined exceptions to the principle that a third party is not directly concerned by a Commission decision where the addressee of the decision retains a discretion.
64. In the case in point, however, the situation is different. Unlike in those cases, in this case it is not possible to make similar compelling inferences regarding the subsequent conduct of the addressee of the decision from all the objective facts, particularly since the Italian State itself has a share in the Ente. Recourse can be had only to the subjective announcement of the Italian State. It is not binding and in no way prevents the Italian State from actually refraining from recovery or paying for the assistance for the Ente from its own resources. Against this background, it would appear unconvincing to assume, merely on the basis of an announcement by the Italian State that it intends to recover the assistance from the Ente, that the Ente is directly concerned. (25) Not least, a Member State would consequently be able, by means of a legally non-binding announcement of future conduct, to decide whether the person concerned had standing to bring proceedings before the Community courts.
65. Therefore, it must be concluded that the Ente is not directly concerned, since the Italian State was not under an obligation to reclaim the money from the Ente.
66. The Court of First Instance considered that its assumption of the Ente's standing was further confirmed by the fact that the decision to grant provided for consultation with the Ente before a decision on closing the financial assistance from the ERDF was adopted. The Court of First Instance correctly held that this mandatory consultation placed the Ente in a stronger position in the procedure than the applicants in the Regione Siciliana cases. However, an independent right of action against a decision on the merits of a case cannot be deduced solely from prescribed third-party consultation intended to provide a sound basis for a Commission decision addressed to a Member State where the third party to be consulted as in the present case is not directly concerned by the content of the decision.
67. Finally, it is necessary to consider whether this denial of standing constitutes a denial of justice. In this respect it should be noted that individuals are entitled to effective judicial protection of the rights they derive from Community law. (26)
68. The judicial protection of natural or legal persons who are unable, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, directly to challenge a decision of the type at issue here must be guaranteed effectively by remedies available before national courts. The Court has already stressed that those are required, in accordance with the principle of cooperation in good faith laid down by Article 10 EC, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables those concerned to challenge before the courts the lawfulness of any national measure relating to the application to them of a Community act such as that at issue by pleading the invalidity of the measure and thereby prompting the national courts to refer questions to the Court of Justice for a preliminary ruling. (27)
69. To conclude, the action brought by the Ente was inadmissible at first instance on account of the Ente's lack of standing. The appeal brought by the Commission is consequently well-founded.

B The appeal brought by Ente per le Ville vesuviane

70. In the light of the inadmissibility of the Ente's action before the Court of First Instance, the Ente's appeal against the decision on the merits of the action in the judgment under appeal has become devoid of purpose, and therefore need not be considered. (28) The appeal is thus no longer a live issue.
71. In case the Court takes a different view regarding the admissibility of the action, I will examine the merits of the appeal brought by the Ente below, on an alternative basis.

1. Alternative examination of the grounds of appeal

a) First ground of appeal

72. In its first ground of appeal the Ente alleges an error in law, an error in examination of the facts and an error of reasoning having regard to Article 12 of Regulation No 4254/88. That article lays down the time-limit by which requests for payment must be submitted to the Commission in order to be eligible for consideration. It provides for an exception to this time-limit for projects which are subject to suspension for judicial reasons.
73. In the view of the Ente, the extension of the time-limit applies to the whole project even where the exception in Article 12 covers only part of an approved project, that is to say, even just one of the three villa complexes.
74. However, the Court of First Instance rightly concluded that the exception applies, where a project can be divided, only to the parts of a project which are subject to suspension for judicial reasons. The possibility of extending the time-limit is an exception to the principle that all requests for payment must be submitted to the Commission within fixed periods. The Court of First Instance therefore rightly pointed out that the time-limit extension provided for in Article 12 must be interpreted strictly. Proper and reliable financial planning of ERDF resources requires that the monies be accounted for as quickly as possible. Where a project can be divided and the exception in Article 12 covers only a part of the project, it is therefore unconditionally true that the completed parts of the project must be accounted for in good time.
75. The Ente's claim that Court of First Instance was wrong to assume that the approved project could be divided up must be dismissed as inadmissible, since it challenges a finding of fact made by the Court of First Instance. Furthermore, there is no indication that the works should not be accounted for separately in respect of each of the three villa complexes.
76. Consequently, the first ground of appeal ought not to succeed.

b) Second ground of appeal

77. In its second ground of appeal, the Ente alleges that the Commission failed to consult it before adopting the contested decision.
78. In the judgment under appeal the Court of First Instance held that a right to be consulted was conferred on the Ente in Article 4 of the decision to grant. This article provides that the Commission may not take a decision on closing or requiring repayment of the assistance without consulting the beneficiary beforehand.
79. The Court of First Instance went on to state that the Commission failed to consult the Ente before adopting the contested decision and thereby infringed the Ente's right to be consulted. Nevertheless, the Court of First Instance considered that this infringement of the right to be consulted did not justify annulment of the contested decision, since it had no effect on its content.
80. At first instance the Ente raised no relevant objections which would have compelled the Commission to adopt a different decision.
81. In this respect the Ente alleges that the Court of First Instance wrongly assumed that the work on Villa Ruggero had already been completed in 1992. The Ente says that it submitted to the Court of First Instance comprehensive documentation showing that the work on Villa Ruggero had been subject to suspension for judicial reasons from 1989 to at least the end of 1996.
82. It should first be noted that the question when the work on Villa Ruggero was completed and what obstacles existed constitutes an assessment of facts, which is a matter which is within the purview of the Court of First Instance alone and in principle not subject to an appeal.
83. Only in cases in which the Court of First Instance has carried out a factual assessment which must be regarded as a distortion of evidence is the Court of Justice called upon, by way of an exception, to take this as a basis for setting aside a judgment.
84. In the present case it may be left open whether the Court of First Instance's finding of fact regarding the time of completion of the work on Villa Ruggero must be regarded as a distortion of evidence. Even assuming that the documents submitted to the Court of First Instance showed beyond doubt that this work was not completed in 1992 but, as the Ente claims, subject to suspension for judicial reasons until the end of 1996, the Commission could have closed the assistance from the ERDF at the time the contested decision was adopted in 2002 on the ground that the monies concerned had not been accounted for in good time. It follows from the strictly exceptional nature of the time-limit laid down in Article 12 of Regulation No 4254/88, as set out above, that the project should, in any event, have been implemented and accounted for immediately after the judicial reasons for the suspension ceased to apply. However, the Ente has not contended that it implemented and accounted for the project immediately or, moreover, furnished evidence that the works had to continue beyond the year 2000.
85. Therefore, the ground of appeal put forward is incapable of calling into question the judgment under appeal. If it is incapable of doing so, it constitutes a ground of appeal which cannot secure the objective of the appeal and is therefore unfounded.
86. Consequently, the Ente's second ground of appeal likewise ought not to succeed.

2. Interim conclusion on the appeal brought by the Ente

87. My interim conclusion is that there is no need to rule on the appeal brought by the Ente.

VII Costs

88. Under Article 69(2) of the Rules of Procedure of the Court of Justice, which is applicable to appeals by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they are applied for in the successful party's pleadings. Under Article 69(6) of those rules, also applicable to appeals by virtue of Article 118, where a case does not proceed to judgment, the costs are at the discretion of the Court.
89. Since the Commission has applied for costs and the Ente has been unsuccessful as regards the Commission's appeal, the Ente must be ordered to pay the costs of this appeal.
90. The Ente's appeal is devoid of purpose, as a result of the upholding of the Commission's appeal; the Ente must therefore be ordered to pay the costs of its appeal too.
91. Since the Commission has also applied for costs of the procedure before the Court of First Instance and the action before that Court is to be dismissed as inadmissible, the Ente must be ordered to pay the costs of the procedure at first instance.

VIII Conclusion

92. I therefore propose that the Court should:

(1) Set aside the judgment of the Court of First Instance of 18 July 2007 in Case T-189/02 Ente per le Ville vesuviane v Commission;

(2) Dismiss as inadmissible the action brought by Ente per le Ville vesuviane for annulment of Commission Decision D (2002) 810111 of 13 March 2002 ordering the closure of the financial assistance from the ERDF;

(3) Declare that there is no need to rule on the appeal brought by Ente per le Ville vesuviane against the judgment referred to in paragraph 1 of the present operative part;

(4) Order Ente per le Ville vesuviane to pay the costs of the present appeals and also those of the procedure at first instance.

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1 Original language: German.

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2 Case T-189/02 Ente per le Ville vesuviane v Commission, not published in the ECR, information at [2007] ECR II-89*.

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3 Decision C (86) 2029/120 of the Commission's Regional Policy Directorate General.

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4 D(2002) 810111 prot. 102504 of the Commission's Regional Policy Directorate General.

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5 Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraph 46.

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6 The provision provides that a party applying for a decision on admissibility, on lack of competence or other preliminary plea not going to the substance of the case is to make the application by a separate document. The corresponding provision in the Rules of Procedure of the Court of Justice, contained in Article 91, is worded as follows: 'A party applying to the Court for a decision on a preliminary objection or other preliminary plea not going to the substance of the case shall make the application by a separate document. The application must state the pleas of fact and law relied on and the form of order sought by the applicant; ... .'

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7 See, regarding cases in which there was a procedural issue, Case C-73/97 P France v Comafrica and Others [1999] ECR I-185; Case C-141/02 P Commission v T'Mobile Austria [2005] ECR I-1283, paragraphs 50 and 51; and Case C-362/05 P Wunenburger v Commission [2007] ECR I-4333.

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8 Order of the President in Case C-363/98 P(R) Emesa Sugar v Council [1998] ECR I-8787, paragraph 43 et seq.

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9 Order cited in footnote 8, paragraph 44.

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10 Case C-417/04 P Regione Siciliana v Commission [2006] ECR I-3881, and Case C-15/06 P Regione Siciliana v Commission [2007] ECR I-2591.

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11 See Case C-404/96 P Glencore Grain v Commission [1998] ECR I-2435, paragraph 41; Case C-386/96 P Dreyfus v Commission [1998] ECR I-2309, paragraph 43; Case C-486/01 P Front national v Parliament [2004] ECR I-6289, paragraph 34; Case C-417/04 P Regione Siciliana v Commission, cited in footnote 10, paragraph 28; and Case C-125/06 P Commission v Infront WM [2008] ECR I-0000, paragraph 47.

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12 Case C-417/04 P Regione Siciliana v Commission, cited in footnote 10, paragraph 29.

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13 Case C-15/06 P Regione Siciliana v Commission, cited in footnote 10, paragraph 36.

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14 Case C-417/04 P Regione Siciliana v Commission, cited in footnote 10, paragraph 30.

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15 Case C-15/06 P Regione Siciliana v Commission, cited in footnote 10, paragraph 36.

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16 Glencore Grain v Commission, cited in footnote 11, paragraph 41 and the case-law cited.

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17 See, inter alia, Case C-417/04 P Regione Siciliana v Commission, cited in footnote 10, paragraph 28 and the case-law cited.

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18 See the Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-417/04 P Regione Siciliana v Commission, cited in footnote 10, point 76.

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19 See the Opinion in Case C-417/04 P Regione Siciliana v Commission, cited in footnote 10, point 80.

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20 Opinion in Case C-417/04 P Regione Siciliana v Commission, cited in footnote 10, point 84.

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21 Case 11/82 S.A. Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 8 to 10, and Dreyfus v Commission, cited in footnote 11, paragraph 43 et seq.

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22 The comments of Advocate General Ruiz-Jarabo Colomer in his Opinion in Regione Siciliana also suggest that he considered the applicability of that case-law, since he raised the fact that the Commission did not know or could not have known beforehand the intention of the Italian authorities in that respect. However, this aspect was ultimately irrelevant to the resolution of the case in Regione Siciliana. See the Opinion in Case C-417/04 P Regione Siciliana v Commission, cited in footnote 10, point 77 et seq.

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23 Piraiki-Patraiki, cited in footnote 21.

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24 Dreyfus v Commission, cited in footnote 11.

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25 See, to this effect, the Order of the Court in Case T-105/01 SLIMSicilia v Commission [2002] ECR II-2697, paragraph 52, according to which an expressed intention of the Member State is not sufficient.

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26 See Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I-3425, paragraph 29 and the case-law cited.

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27 Case C-15/06 P Regione Siciliana v Commission, cited in footnote 10, paragraph 39, which refers to Commission v Jégo-Quéré, cited in footnote 26, paragraphs 30 to 32.

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28 See Case C-15/06 P Regione Siciliana, cited in footnote 10, paragraph 44.