Action brought on 11 October 2004 by the Federal Republic of Germany against the Commission of the European Communities

(Case T-414/04)

(2004/C 314/57)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 October 2004 by the Federal Republic of Germany, represented by C.-D. Quassowski and C. von Donat, lawyer.

The applicant claims that the Court should:

—

annul the Commission decision notified by letter of the Directorate-General for Regional Policy of 9 August 2004 in so far as the Community assistance from the European Regional Development Fund for the Operational Programme RESIDER II North Rhine-Westphalia 1995-1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051) was reduced to EUR 72 794 851.67 and payment to the German authorities of the balance of EUR 2 268 988.33 was refused;

—	order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission reduced the Community assistance from the ERDF Structural Funds for the Operational Programme RESIDER II North Rhine-Westphalia 1995-1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051) to EUR 72 794 851.67 and refused to pay the German authorities the balance of EUR 2 268 988.33. The reason for the reduction is that, compared with the indicative financial plan, recourse to the programme was lower with respect to certain measures and higher with respect to others. A balance between the more and less heavily used measures was not achieved within the individual priorities of the programme but rather at the level of the programme as a whole.

In support of its action, the applicant first of all observes that, under Article 24 of Regulation No 4253/88, (1) Community assistance may be reduced only if there has been a significant change affecting the nature or conditions of the operation or measure. In the applicant's view, the adjustments made do not constitute such a significant change.

If those adjustments are to be regarded as a significant change, the applicant submits that the Commission gave prior approval in its ‘Guidelines on the closure of operational programmes (1994-1999) of the Structural Funds’ (SEC(1999) 1316).

The applicant also complains that the Commission abused its discretion by failing to even exercise it and that there are errors in the reasoning for the contested decision.

(1) 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).