Action brought on 8 July 2008 - Germany v Commission
(Case T-270/08)
Language of the case: German
Parties
Applicant: Federal Republic of Germany (represented by: M. Lumma, assisted by C. von Donat, lawyer)
Defendant: Commission of the European Communities
Form of order sought
Annul Commission Decision C(2008) 1615 final of 29 April 2008 reducing the contribution under the European Regional Development Fund (ERDF) granted pursuant to Commission Decision C(94) 1973 of 5 August 1994 for the Operational Programme Berlin (East) Objective 1 (1994-1999) in the Federal Republic of Germany;
Order the Commission to bear the costs.
Pleas in law and main arguments
By the contested decision the Commission reduced the financial contribution from the ERDF for the Operational Programme for the Objective 1 region of the Land of Berlin in the Federal Republic of Germany (1994-1999).
In the reasoning for its action the applicant claims first that the Commission erroneously evaluated the factual situation. The applicant alleges in particular that the Commission misjudged the results of particular verifications and unjustifiably found systematic errors in management and control arrangements.
Second, the applicant argues that there is no legal basis for the application of flat-rate or extrapolated financial corrections to the Operational Programme in the Programming Period 1994-1999 as there were no rules available in respect of that period similar to those laid down in Article 39 of Regulation (EC) No 1260/99.
1 Furthermore, nor can a sufficiently precise legal basis be found in the provisions of Article 24 of Regulation (EEC) No 4253/88
2, the internal guidelines of the Commission of 15 October 1997 on net financial corrections within the framework of Article 24 of Regulation No 4253/88 or the principles of sound financial management provided for in Article 274 EC. According to the applicant it is also not possible to find a corresponding administrative practice which has existed over many years and is generally accepted.
The applicant claims moreover that the contested decision infringes Article 24(2) of Regulation No 4253/88 as no irregularities in the sense of that provision have occurred. It also claims in that context that even if the conditions for a reduction in accordance with Article 24(2) of Regulation No 4253/88 are met, the Commission should have used the discretion available to it and weighed up whether the reduction was proportionate.
In the alternative, the applicant argues that the flat-rate corrections are disproportionate and that the Commission carried out the extrapolation on an inadequate factual basis.
Furthermore, the applicant claims that the defendant infringed its obligation to provide sufficient reasons for the contested decision.
Finally, the applicant asserts that the Commission infringed the principle of partnership since, notwithstanding numerous checks by its financial controllers during the 1994-1999 Programming Period, at no point were financial consequences contemplated on account of systemic weaknesses.
____________1 - Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).2 - 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 1988 L 374, p. 1).