Keywords
Summary

Keywords

1. Actions for failure to act - Institution must be called upon to act - Position to be defined within the meaning of Article 175, second paragraph, of the Treaty (now Article 232, second paragraph, EC) - Draft decisions suspending financial assistance addressed, pursuant to Article 6(1) of Regulation No 2950/83, to the recipients

(EC Treaty, Art. 175, second para. (now Art. 232, second para., EC);Council Regulation No 2950/83, Art. 6(1)))

2. Actions for failure to act - Institution must be called upon to act - Position defined, bringing the failure to act to an end - Decisive date - Date on which the person who had called upon the institution to act receives the document defining a position

(EC Treaty, Art. 175, second para. (now Article 232, second para., EC))

3. Actions for failure to act - Failure to act brought to an end before proceedings initiated - Inadmissible

(EC Treaty, Arts 175 and 176 (now Arts 232 EC and 233 EC))

4. Social policy - European Social Fund - Financial assistance for vocational training - Accuracy of facts and accounts in final payment claims to be certified by the Member States - Scope

(Council Decision 83/516, Art. 2(2))

5. Social policy - European Social Fund - Financial assistance for vocational training - Commission decision adopted on the basis of Article 6(1) of Regulation No 2950/83 - Evaluation of complex facts and accounts - Judicial review - Limits

(Council Regulation No 2950/83, Art. 6(1))

6. Social policy - European Social Fund - Financial assistance for vocational training - Decision suspending financial assistance - Commission under a duty to adopt a decision within a reasonable time - Expiry of the deadline - Consequences

(EC Treaty, Art. 176 (now Art. 233 EC); Council Regulation No 2950/83, Art. 6(1)))

Summary

1. Although draft decisions suspending financial assistance from the European Social Fund which, pursuant to Article 6(1) of Regulation No 2950/83 on the implementation of Decision 83/516 on the tasks of the European Social Fund, are addressed by the Commission to the recipients are intermediate acts whose purpose is to prepare decisions and, as such, not open to challenge by way of an action for annulment, they none the less constitute the defining of a position for the purposes of the second paragraph of Article 175 of the Treaty (now the second paragraph of Article 232 EC).

( see para. 54 )

2. In order to determine whether an institution formally called upon to act has defined its position within the two-month period prescribed in the second paragraph of Article 175 of the Treaty (now the second paragraph of Article 232 EC), it is necessary to verify whether the definition of its position was brought to the attention of the person who called upon it to act within the prescribed period. Consequently, the failure to act comes to an end, not on the day on which the institution actually defines its position, but on the day on which the person who called upon it to act received the document by which it defined its position.

( see para. 55 )

3. An action for failure to act is inadmissible where the defendant institution called upon to act had defined a position after the two-month period laid down in the second paragraph of Article 175 of the Treaty (now the second paragraph of Article 232 EC) expired but before the action was brought. A judgment of the Court which, in such circumstances, found that there had been a failure to act on the part of the institution could not give rise to the measures for compliance referred to in the first paragraph of Article 176 of the Treaty (now the first paragraph of Article 233 EC).

( see paras 55-58 )

4. In so far as a Member State confirms the accuracy of the facts and accounts in claims for final payment of financial assistance from the European Social Fund, it is responsible to the Commission for the certifications which it submits. Furthermore, under Article 2(2) of Decision 83/516 on the tasks of the European Social Fund and Article 7(1) of Regulation No 2950/83 on the implementation of Decision 83/516, the relevant Member States are to guarantee the successful completion of operations financed by the Fund and the Commission may check the final payment claims [w]ithout prejudice to any controls carried out by the Member States. Those obligations and powers of the Member States are not limited by any restriction in time. Accordingly, where the Member State has already certified the accuracy of the facts and accounts in the claim, it may still alter its assessment if it considers that there are irregularities which had not been previously detected.

( see paras 64-67 )

5. Application of Article 6(1) of Regulation No 2950/83 on the implementation of Decision 83/516 on the tasks of the European Social Fund, under which the Commission may suspend, reduce or withdraw financial assistance from the European Social Fund where it is not used in conformity with the conditions set out in the decision of approval, may entail the need to assess complex facts and accounts. In making such assessments, the Commission enjoys a wide discretion. Accordingly, the Community judicature must limit its review of that assessment to verifying that the procedural rules have been observed, that the facts relied on in making the contested choice are accurate, and that there has been no manifest error in assessing those facts or misuse of powers.

( see paras 73, 76 )

6. It is for the Commission to decide claims for final payment of financial assistance from the European Social Fund by taking a decision within a reasonable time, either ordering the balance to be paid in full or adopting decisions suspending, reducing or withdrawing funding.

Although the fact that there has been unreasonable delay in the adoption of a decision may in certain circumstances lead to the annulment of a decision, that cannot be the outcome in the case of a decision to suspend funding, adopted by the Commission because it did not have enough information to calculate the exact amount of eligible expenditure. If such decisions were annulled on the sole ground that they were late, the Commission could do no more than adopt, pursuant to Article 176 of the Treaty (now Article 233 EC), fresh decisions to suspend assistance since it would still not have the information needed to calculate eligible expenditure. That being so, an annulling judgment would be wholly pointless.

( see paras 89-91 )