# Decision of the European Ombudsman on complaint 1386/2002/IP against the European Commission
- Författare: Europeiska ombudsmannen
- Datum: 2004-09-28T00:00+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/sv/decision/sv/1774)
---
Strasbourg, 28 September 2004   

Dear Mr S.,

On 30 July 2002, I received the complaint you made on behalf of the Municipality
of Naples. The complaint concerned the Commission's decision of 30 January
2001 to ask for the reimbursement of EUR 9 752 501,87 paid in the framework
of the European Regional Development Fund for the project *"Emissario
di Coroglio - Pedemontano di Posillipo - Arena S. Antonio"*, and
to revoke the payment of EUR 4 131 655,19 originally foreseen.

On 18 September 2002, I forwarded the complaint to the President of the
European Commission. The Commission sent its opinion on 19 November 2002.
I forwarded it to you with an invitation to make observations, which you
sent on 23 January 2003.

I am writing now to let you know the results of the inquiries that have
been made.

Please accept my apologies for the length of time it has taken to complete
the examination of your case.

THE COMPLAINT
-------------

According to the complainant, the relevant facts are the following:

On 16 February 1988, the European Commission adopted decision C(88)0166041
concerning the granting of financial aid by the European Regional Development
Fund (hereinafter ERDF) for the construction of a sewerage system (*Emissario
di Coroglio - Pedemontano di Posillipo - Arena S. Antonio*) in Naples,
Italy.

On 29 March 1995, the Italian government asked for an extension of time
to carry out the project. The Italian authorities based their request
on Article 12 of Council Regulation (EEC) No 2083/93 adopted on 20 July
1993, which reads that *"those portions of the sums (...) which
have not been the subject of a request for a 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"* [(1)](#(1)){#Footnote1}.

In December 1998, the Commission invited the Italian government to substantiate
the "judicial reasons" on the basis of which it had asked for
the extension of time to carry out the project in question. On the basis
of the subsequent exchange of correspondence and discussions between the
Italian authorities and the Commission, the latter decided, on 30 January
2001, to propose the closing of its intervention and to cancel the last
instalment of EUR 4 131 655,19. At the same time, the Commission asked
for the reimbursement of EUR 9 752 501,87. By letter of 22 March 2001
to the Italian authorities, the Commission confirmed its position mentioned
in the letter of 30 January 2001.

In his complaint to the Ombudsman, the complainant alleged: (*i* )
that the Commission's decision to recover EUR 9 752 501,87 following its
refusal to postpone the financing was manifestly wrong. The request was
made in accordance with article 12 of Regulation (EEC) n° 2083/93 of 20
July 1993; (*ii* ) that there was undue delay by the Commission which
decided on the request to postpone the financing more than five years
after the request was introduced; (*iii*) the Commission infringed
the procedure of Article 3 of Commission's decision of 16 February 1988
concerning the ERDF project n. 870503006.

The complainant claimed that the Commission should annul the recovery
order and pay the amount of EUR 13 884 157,06 which was the sum originally
agreed.

THE INQUIRY
-----------

**The European Commission's opinion**   

In its opinion, the Commission recalled the factual background of the
complaint and made the following points:

By decision C(88)0166041 of 16 February 1988, the Commission agreed to
co-finance the construction of the sewerage system concerning the *Emissario
di Coroglio - Pedemontano di Posillipo - Arena S. Antonio* , in Naples
(Italy). This decision foresaw that the EU should provide financing up
to a maximum of 40 billion LIT[(2)](#(2)){#Footnote2}.

On 29 March 1995, the Italian authorities asked the Commission to postpone
the deadline of 31 March 1995 for demanding the final payment. They based
their request on Article 12 of Council Regulation (EEC) 2083/93.

On 11 November 1998, the Commission informed the Italian authorities
of the urgency to proceed with the closing of the project in question.
The Commission asked the Italian authorities to provide it with the supporting
evidence confirming the fact that the delay in dealing with the project
was due to judicial reasons.

On 11 December 1998, the Italian authorities informed the Commission
that they could not submit the information requested within the deadline
of 31 December 1998 foreseen by the Commission and that they would send
it in January 1999, after having contacted the administrative services
involved. On 15 February 2000, the Italian authorities forwarded to the
Commission a report which contained information concerning the legal proceedings
on the basis of which they had asked the Commission, in 1995, for the
postponement of the deadline demanding the final payment. Further information
was sent to the Commission on 22 June 2000.

On 30 January 2001, the Commission informed the Italian authorities that
it could not accept their request to postpone the deadline of 31 March
1995 for demanding the final payment. The Commission took the view that
the reasons invoked by the Italian authorities could not be considered
as relevant under Article 12 of Council Regulation (EEC) 2083/93. The
institution therefore proposed to close the financial intervention on
the basis of the certified expenses declared before 31 March 1995. The
Italian authorities forwarded further information on 8 March 2001 and
asked for the final payment of the financing. In their letter, the Italian
authorities also confirmed that the legal proceedings on basis of which
they had asked for the postponement of the final payment had been posterior
to the suspension of the project. On the basis of this information, the
Commission therefore sent a further letter to the Italian authorities
on 22 March 2001, in which it confirmed its decision of 30 January 2001.

By letter of 9 May 2001, the Italian authorities informed the Commission
that they did not have any observations about the Commission's position.
The Commission therefore proceeded to the closing of its intervention,
i.e. it cancelled the last installment of EUR 4 131 655,19 and asked for
the reimbursement of EUR 9 752 501,87.

The legal framework applicable to the case in question was Council Regulation
(EEC) n° 1787/84 on the ERDF[(3)](#(3)){#Footnote3} and
Article 12 of Council Regulation (EEC) No 2083/93 of 20 July 1993 amending
Regulation (EEC) No 4254/88 laying down provisions for implementing Regulation
(EEC) No 2052/88 as regards the ERDF. In accordance with this Article
*"\[t\]hose 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"*.

Furthermore, Article 3 of the Commission's decision C(88)0166041 concerning
the granting of financial aid by the ERDF foresees that *"\[t\]he
failure to respect one of the conditions of the present decision, including
those concerning the time limit for the realisation of the project, entitles
the Commission to reduce or annul the grant awarded following this decision;
in such a case, the Commission can ask for the partial or total restitution
of the sum already paid. These reduction, annulment or recovery orders
cannot be effective without giving the beneficiary the opportunity to
submit its observations within the deadline set by the Commission"*.

As regards the grounds of the present complaint, the Commission stressed
that since the creation of the structural policies, the planning of the
structural measures is the joint responsibility of the Commission and
the Member States. However, the realization of individual measures is
the sole responsibility of the Member State concerned. In the present
case, the Commission's decision had been addressed to the Republic of
Italy which was the sole interlocutor of the Commission[(4)](#(4)){#Footnote4}.
All the Commission's correspondence relating to this case had therefore
been addressed to the Republic of Italy.

The Commission took the view that the complainant's request for annulment
of its decision of 29 January 2001 was without object, since the complainant
had not been directly concerned by the Commission's decision. In accordance
with the case-law of the Community courts, for an applicant to be directly
concerned by a Community measure addressed to another person, which is
a condition of admissibility of an action for annulment brought by a natural
or legal person, the contested Community measure must directly affect
the legal situation of the applicant and leave no discretion to the addressees
of that measure who are entrusted with the task of implementing it, such
implementation being purely automatic and resulting from Community rules
without the application of other intermediate rules[(5)](#(5)){#Footnote5}.
The Commission's decision not to consider eligible certain expenditure
presented by the Italian authorities had no direct effect on the legal
situation of the complainant in terms of the Community jurisprudence.
By analogy to an action for annulment hypothetically brought by the complainant
before the Court of First Instance, which would have been inadmissible,
the Commission took the view that the complainant's complaint should have
been considered as inadmissible.

On the basis of the information in the possession of the Commission,
it appeared that the project had been suspended between January 1992 and
July 1996. The Commission took the view that the reasons invoked by the
Italian authorities could not be considered as relevant under Article
12 of Council Regulation (EEC) 2083/93. On the basis of the supporting
documents in its possession, it appeared that the suspension of the execution
of the project was due to the refusal by the region of Campania to accept
certain modifications made to the plan by the city of Naples. As a consequence
of this refusal, and of the unavailability of certain plots of land concerned
by the project, the execution of the project had been suspended. Following
this suspension and the interruption of payments, the company which was
executing the project forwarded an extra-judicial act to the contractor.
The latter subsequently took the city of Naples to court. The legal proceedings
invoked by the Italian authorities had therefore been the consequence
of the suspension of the works and not its origin, as required by the
Regulation.

As regards the alleged undue delay of its decision on the request for
an extension of time for demanding the final payment, the Commission pointed
out that it took its decision on the basis of the documents which had
been forwarded to it by the Italian authorities. The request made by the
Italian authorities on 29 March 1995 did not contain enough supporting
documents to allow the institution to decide whether the request was well-founded.
In this letter, the Italian authorities promised to submit a detailed
report to the Commission in order to justify their request. On 11 November
1998, the Commission asked the Italian authorities to forward all relevant
documentation concerning the judicial proceedings before the end of December.
Nevertheless, the Italian authorities did not send the requested documentation
until 15 February and 22 June 2000 respectively. On 31 January 2001, the
Commission informed the Italian authorities of its intention to close
the financial intervention on the basis of the certified expenses declared
before 31 March 1995. The Italian authorities sent further information
on 8 March 2001 and asked for the final payment. Since there were no elements
which could have justified a different position by the Commission, the
institution confirmed its position by letter of 22 March 2001.

As regards the alleged infringement of the procedure foreseen by Article
3 of the Commission's decision C(88)0166041 of 16 February 1988, the institution
underlined that the decision to close the financial intervention for the
project in question had not been based on Article 3 of the decision granting
the financing. The relevant legal basis in this case was Article 12 of
Council Regulation (EEC) No 2083/93.
**The complainant's observations**   

In his observations on the Commission's opinion, the complainant basically
maintained his position.

In the complainant's view, the Commission's interpretation of Article
12 of Council Regulation (EEC) No 2083/93 was wrong. According to the
complainant, the Commission should have accepted the request for an extension
of time made by the Italian authorities. The complainant also took the
view that Article 12 of Regulation (EEC) No 2083/93 should not apply in
the present case since it had entered into force after the approval of
the project concerned.

The complainant furthermore stressed that Article 12 of Regulation (EEC)
No 2083/93 did not foresee the possibility to ask for the total or partial
reimbursement of the financing, but foresees only the possibility to *"automatically
release 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"*.

THE DECISION
------------

**1 Preliminary remarks**   

1.1 In its opinion, the Commission submitted that the complainant's request
for annulment of its decision of 29 January 2001 was without object, since
the complainant had not been directly concerned by the Commission's decision.
The Commission referred to the case law of the Community courts according
to which one of the conditions of admissibility for an action for annulment
brought by a natural or legal person is that the contested Community measure
must directly affect the legal situation of the applicant and leave no
discretion to the addressees of that measure who are entrusted with the
task of implementing it, such implementation being purely automatic and
resulting from Community rules without the application of other intermediate
rules[(6)](#(6)){#Footnote6}. By analogy to an action
for annulment hypothetically brought by the complainant before the Court
of First Instance, which would have been inadmissible, the Commission
took the view that the complainant's complaint made to the Ombudsman should
have been considered as inadmissible.

1.2 Article 195 of the Treaty empowers the European Ombudsman to receive
complaints from any citizen of the Union or any natural or legal person
residing or having its registered office in a Member State concerning
instances of maladministration in the activities of the Community institutions
or bodies, with the exception of the Court of Justice and the Court of
First Instance acting in their judicial role.

As regards the present case, the Ombudsman took the decision to open
an inquiry into the complaint since, after careful examination of the
complaint, he considered that all the criteria of admissibility were met.
Article 195 does not require that the complainant should be directly affected
by the contested decision in order to be able to complain to the Ombudsman.

1.3 As regards the decision below, the Ombudsman considers that it appears
to be preferable to deal first with the second allegation made by the
complainant, concerning the alleged undue delay by the Commission, before
dealing with the substantive aspect of the Commission's decision contested
by the complainant.
**2 The alleged undue delay by the Commission when handling the request
by the Italian government for an extension of the time to carry out the
construction of a sewerage system in Naples**   

2.1 The complainant alleged that the Commission had unduly delayed its
decision on the request made by the Italian government on 29 March 1995
more than five years after it had been introduced. It is undisputed that
the Commission decided on this request only in 2001.

2.2 In its opinion, the Commission explained which actions it had taken
from the date of the request made by the Italian authorities to its final
decision. According to the Commission, the request made by the Italian
authorities on 29 March 1995 did not contain enough supporting documents
to allow the institution to decide whether the request was well-founded.
The Italian authorities promised to submit a detailed report to the Commission
in order to justify their request. On 11 November 1998, the Commission
invited them to forward all relevant documentation concerning the judicial
proceedings before the end of December. Nevertheless, the Italian authorities
did not send the requested documentation until 15 February and 22 June
2000 respectively. On 31 January 2001, the Commission informed the Italian
authorities of its intention to close the project, since on the basis
of the information provided by the latter, the institution could not accept
the request for an extension of time for carrying out the project in question.
The Italian authorities sent further information on 8 March 2001 and asked
for the final payment. Since there were no elements which could have justified
a different position by the Commission, the institution confirmed its
position by letter of 22 March 2001.

2.3 In view of the above, the Ombudsman considers that the Commission
has given a reasonable explanation for the length of time elapsed between
the request made by the Italian authorities and its final decision.

2.4 The Ombudsman therefore finds no maladministration in relation to
this aspect of the case.
**3 The Commission's recovery order**   

3.1 The complainant alleged that the Commission's decision to recover
EUR 9 752 501,87 following its refusal to postpone the financing was manifestly
wrong. The request was made in accordance with article 12 of Regulation
(EEC) n° 2083/93 of 20 July 1993.

3.2 In its opinion, the Commission stressed that the "judicial reasons"
invoked by the Italian authorities could not be considered as relevant
under Article 12 of Council Regulation (EEC) 2083/93. On the basis of
the supporting documents in the Commission's possession, it appeared that
the suspension of the execution of the project was due to the refusal
by the region of Campania to accept certain modifications made to the
plan by the city of Naples. As a consequence of this refusal and to the
unavailability of certain plots of land related to the project, the execution
of the project had been suspended. Following this suspension and the interruption
of payments, the company which was executing the project forwarded an
extra-judicial act to the contractor. The latter subsequently took the
city of Naples to court. The legal proceedings invoked by the Italian
authorities had therefore been the consequence of the suspension of the
works and not its origin, as required by the Regulation.

3.3 The purpose of Regulation (EEC) No 2083/93, which was the legal basis
of the Commission's decision in the present case, appeared to be to wind
up all projects decided on by the Commission before 1 January 1989 under
the ERDF and still pending by 31 March 1995, unless the exception of Article
12 applied. Article 12 of Regulation Council Regulation (EEC) No 2083/93
foresees that *"\[t\]hose 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"*.

3.4 The Ombudsman notes that the Commission had taken its decision concerning
this case before 1 January 1989 and was still pending on 31 March 1995.
It therefore appears that the Commission's decision to base its decision
on Regulation (EEC) No 2083/93 was correct. Furthermore, it should be
noted that the Italian authorities themselves based their request for
the postponement of the deadline for demanding the final payment on Regulation
(EEC) No 2083/93.

3.5 In his observations, the complainant took the view that Article 12
of Regulation (EEC) No 2083/93 should not apply in the present case since
it had entered into force after the approval of the project concerned.

3.6 The complainant thus seems to suggest that the Commission's approach
in the present case is based on a retroactive application of Regulation
2083/93. However, Article 12 of this regulation was adopted precisely
for cases such as the present one where the Commission's decision to grant
financial assistance had been taken before 1989. It should furthermore
be noted that Regulation 2083/93 was adopted on 20 July 1993, nearly two
years before the expiry of the deadline of 31 March 1995 set out in its
Article 12. The Ombudsman therefore considers that the complainant has
not shown why Article 12 of Regulation 2083/93 should not be applicable
in the present case.

3.7 On the basis of the information acquired during the present inquiry,
the Ombudsman considers that the Commission's view that the exception
foreseen in Article 12 of the above-mentioned Regulation was not applicable
in the present case appears to be reasonable.

3.8 In these circumstances, the Ombudsman considers the Commission's
view that it was unable to make any further payments to the Italian government
(notably as regards the last instalment of EUR 4 131 655,19) to be reasonable.

3.9 As regards the recovery order, the Ombudsman notes that the Commission
asked for the restitution of those sums for which the Italian authorities
had failed to present an invoice of payment before 31 March 1995. These
amounted to EUR 9 752 501,87. This amount appears to have been obtained
by deducting 13.3 billion LIT, corresponding to 50% of the costs that
had been duly declared, from the sum that had already been paid by the
Commission (32 billion LIT).

The Ombudsman notes that Decision C(88)0166041 foresaw that the EU should
bear 50 % of the costs of the project, up to a maximum of 40 billion LIT.
The complainant's demand that the Commission should annul its recovery
order would effectively mean that the EU should bear more than 50 % of
the costs that had been declared by 31 March 1995. The Ombudsman considers
that the complainant has not submitted sufficient evidence to show that
this would indeed be the most reasonable interpretation of Article 12
of Regulation (EEC) No 2083/93.

It should also be noted in this context that the Italian government,
which was the Commission's counterpart in this case, did not object to
the Commission's interpretation.

3.10 The Ombudsman considers that the Commission interpretation of Regulation
(EEC) No 2083/93 appeared to be reasonable and that the institution had
not exceeded its legal authority when deciding to ask for the restitution
of EUR 9 752 501,87.

3.11 The Ombudsman therefore finds no maladministration in relation to
this aspect of the case.
**4 The alleged infringement by the Commission of Decision C(88)0166041**   

4.1 In his complaint, the complainant alleged that the Commission had
infringed the procedure foreseen by Article 3 of Commission's decision
of 16 February 1988 concerning the ERDF project n. 870503006.

4.2 The Commission underlined that the relevant decision had been based
only on Article 12 of Regulation (EEC) No 2083/93 and not on Article 3
of the Commission's decision C(88)0166041 of 16 February 1988.

4.3 In view of the conclusion reached in point 3.5 of the present decision
that the Commission's decision to base its decision on Regulation (EEC)
No 2083/93 had not been incorrect, the Ombudsman finds no maladministration
in relation to this aspect of the case.
**5 The complainant's claims**   

5.1 The complainant claimed that the Commission should annul the recovery
order and pay the amount of EUR 13 884 157,06, i.e the sum of EUR 9 752
501,87 the reimbursement of which the Commission had asked, and the sum
of EUR 4 131 655,19 corresponding to the last instalment that had been
cancelled by the institution.

5.2 In view of the Ombudsman's findings regarding the complainant's allegations
(see points 3.7 and 3.10), the Ombudsman considers that the complainant's
claims cannot be sustained.

5.3 It should be noted, however, that the present decision only deals
with those aspects of the case related to the funding provided by the
Commission to the Italian government with regard to the relevant project.
It thus not deal with any claims the complainant may have against the
Italian government under national law.
**6 Conclusion**   

On the basis of the Ombudsman's inquiries into this complaint, there
appears to have been no maladministration by the European Commission.
The Ombudsman therefore closes the case.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

*** ** * ** ***

[(1)](#Footnote1){#(1)} Council Regulation (EEC) No 2083/93
of 20 July 1993 amending Regulation (EEC) No 2052/88 as regards the European
Regional Development Fund, OJ L 193 of 31 July 1993, p.13.

[(2)](#Footnote2){#(2)} Decision C(88)0166041 further
foresaw that the EU should bear 50% of the costs of the project.

[(3)](#Footnote3){#(3)} Council Regulation (EEC) No 1787/84
of 19 June 1984 on the European Regional Development Fund, OJ L 169 of 28 June 1984, p. 1.

[(4)](#Footnote4){#(4)} Case C-291/89 *Interhotel/Commission*
\[1991\] ECR I p. 2257.

[(5)](#Footnote5){#(5)} Case C-386/96 *Dreyfus/Commission*
\[1998\] ECR I p.2309.

[(6)](#Footnote6){#(6)} Case C-386/96 *Dreyfus/Commission*
\[1998\] ECR I p. 2309.