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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Windpark Groothusen v Commission (Energy) [1998] EUECJ C-48/96P (14 May 1998) URL: http://www.bailii.org/eu/cases/EUECJ/1998/C4896P.html Cite as: [1998] EUECJ C-48/96P |
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JUDGMENT OF THE COURT (Third Chamber)
14 May 1998 (1)
(Appeal - Financial support in the energy sector - Thermie programme - Right to full legal protection - Duty to state reasons - Right to a hearing - Discretion)
In Case C-48/96 P,
Windpark Groothusen GmbH & Co. Betriebs KG, a company governed by German law, established at Groothusen-Krummhörn (Germany), represented by Professor Detlef Schumacher, Bremen, and Benno Grunewald, Rechtsanwalt, Bremen,
appellant,
APPEAL against the judgment of the Court of First Instance of the European Communities (First Chamber) of 13 December 1995 in Case T-109/94 Windpark Groothusen v Commission [1995] ECR II-3007, seeking to have that judgment set aside,
the other party to the proceedings being:
Commission of the European Communities, represented by Jürgen Grunwald, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Legal Service, Wagner Centre, Kirchberg,
THE COURT (Third Chamber),
composed of: C. Gulmann, President of the Chamber, J.C. Moitinho de Almeida (Rapporteur) and J.-P. Puissochet, Judges,
Advocate General: G. Cosmas,
Registrar: H.A. Rühl, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 2 October 1997, at which Windpark Groothusen GmbH & Co. Betriebs KG was represented by Professor Detlef Schumacher and Wilhelm Wiltfang, Rechtsanwalt, Bremen, and the Commission by Jürgen Grunwald,
after hearing the Opinion of the Advocate General at the sitting on 13 November 1997,
gives the following
'1 On 26 June 1990 the Council adopted Regulation (EEC) No 2008/90 concerning the promotion of energy technology in Europe (Thermie programme) (OJ 1990 L 185, p. 1: "the Thermie Regulation"). The Thermie programme covers a total of 17 sectors of application, including wind energy.
2 In accordance with Article 8 of the Thermie Regulation, the procedure for the selection of eligible projects is initiated by the Commission, which must publish an invitation to submit projects in the Official Journal of the European Communities. For the selection of projects with a total cost exceeding ECU 500 000, the Commission is assisted by a committee
composed of the representatives of the Member States ("the Thermie Committee"), which delivers an opinion on the draft of the measures to be taken which is submitted to it by the Commission. If the measures adopted by the Commission are not in accordance with the Thermie Committee's opinion, the Commission must communicate them to the Council. Pursuant to Article 10(1) of the Thermie Regulation, the Council may then take a different decision from the Commission.
3 For 1993, the Commission published in the Official Journal of 16 July 1992 (OJ 1992 C 179, p. 14) a communication of the provision of financial support to projects for the promotion of energy technology (Thermie programme). It invited interested parties to submit, before 1 December 1992, projects for possible selection to receive financial support in 1993. It also specified, in accordance with Article 8(2) of the Thermie Regulation, the sectors to be given priority, that is to say, "low energy, low CO2 buildings" and "integrated urban traffic management systems". In addition, the Commission stated that a document giving details of the procedure for the submission of proposals and information on the eligibility conditions, selection criteria and other relevant information could be obtained from it.
4 The applicant is a company whose object is to construct and operate a wind park in the Groothusen area, near Emden in Germany.
5 On 27 November 1992 the applicant submitted to the Commission an application for aid of ECU 1 933 495 for the construction of a wind park.
6 The Commission received approximately 700 proposals. In March 1993 the Directorate-General for Energy drew up a document appraising those projects. On 5 April 1993 they were examined by the technical committee for wind energy and on 3 and 4 June 1993 by the Thermie Committee. The Commission thus established, pursuant to Article 9(2) in conjunction with Article 10(1) of the Thermie Regulation, the priorities for invitations to submit projects in accordance with the so-called "committee" procedure.
7 On 19 July 1993 the Commission decided to grant financial support to a total of 137 projects. By the same decision, it also drew up a "reserve list" of 49 replacement projects. Of the 52 projects in the field of wind energy, eleven were granted financial support and eight were entered on the reserve list. A brief communication concerning that decision was published in the Official Journal of 24 July 1993 (OJ 1993 C 200, p. 4).
8 On 5 August 1993 the Commission informed the applicant that its project had been placed on "a supplementary list of projects which may be granted financial support before 31 December 1993 if sufficient budgetary credits
become available, particularly if some of the projects which have already been granted financial support have not been carried out". According to an annex to that letter, the maximum amount of financial support for the project had been fixed at ECU 918 028. The Commission emphasised that it was in no way bound by the fact that the project had been placed on the supplementary list and disclaimed all responsibility for any consequences which might ensue from a definitive decision not to grant the applicant financial support.
9 By fax of 9 August 1993, addressed to the Commission, the applicant requested further information and authorisation to commence work. The European Communities Liaison Office of the Land of Lower Saxony thereupon informed the applicant that its project was on the reserve list and that a decision concerning possible financial support would be taken some time after the beginning of September 1993.
10 By letter of 13 January 1994, addressed to the applicant, the Commission stated that the applicant's project could not be granted financial support in 1993, owing to the lack of appropriate budgetary credits.
11 The applicant responded by letters of 9 and 23 February 1994, expressing its disappointment and asking the Commission to "review carefully [your] notice of January 13, 1994 and the selection procedure which preceded it". On 16 March 1994 the Commission replied, confirming the content of its letters of 5 August 1993 and 13 January 1994.'
available under the budget for the Thermie programme in July 1993 after the decision had been taken to finance certain projects, according to the Commission the money in question had been allocated during the last months of 1993 to certain 'targeted' projects, so that, at the end of 1993 there were no longer any funds available (paragraphs 44 and 45).
The plea alleging infringement of the right to full legal protection
decision of 13 January 1994, dismissing the action as being out of time in so far as it was directed against the decision of 19 July 1993. Windpark also pleads infringement of its right to judicial review in that the Court of First Instance held the decision of 19 July 1993 not to include Windpark's project among the 137 projects selected to be definitive. Windpark maintains that, since its project had been placed on a 'reserve list', no definitive decision in that regard had yet been taken.
The plea alleging misapplication of Article 173, fifth paragraph, of the Treaty
application on 17 March 1994. Windpark maintains that there is a contradiction in this regard between the statements of the Court of First Instance in paragraphs 9 and 28, respectively, of the judgment under appeal: whereas the Court states at paragraph 28 that, on receiving the letter of 5 August 1993, Windpark did not request either the full text or an individual explanation of the decision to exclude its project, it states at paragraph 9 that, by fax of 9 August 1993, Windpark requested further information after receiving the letter of 5 August 1993 and that the Commission had not responded. Moreover, Windpark maintains that the Commission should have inferred from its request by fax of 9 August 1993 for further explanations that Windpark had not understood the implications of the communication of 5 August 1993, and should have informed it of the precise content of the Commission's decision of 19 July 1993. Since the Commission's first response was the letter of 13 January 1994, that letter alone was capable of causing time to start running.
had been excluded from the 137 projects to be awarded funding, it could not escape being time-barred for the purposes of contesting that act.
The plea alleging breach of the duty to state reasons
Furthermore, the distinction between dissemination projects under Article 2 of the Thermie Regulation and targeted projects under Article 4 thereof is not made in either the proceedings before the Court of First Instance or the budgetary programme.
whom the measure is addressed or of other parties to whom it is of direct and individual concern within the meaning of the fourth paragraph of Article 173 of the Treaty (Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19).
The plea alleging infringement of the right to a hearing
to make its views known. The Court of First Instance was wrong to hold that in the case of a procedure for financial support, the conditions governing which have been previously published, the Commission need not hear the views of the persons concerned.
The plea alleging misuse of powers
The plea alleging infringement of Article 175, third paragraph, Article 173, fourth paragraph, and Article 176 of the Treaty
Costs
58. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for. Since the appellant has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Third Chamber)
hereby:
1. Dismisses the appeal;
2. Orders the appellant to pay the costs.
Gulmann
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Delivered in open court in Luxembourg on 14 May 1998.
R. Grass C. Gulmann
Registrar President of the Third Chamber
1: Language of the case: German.