In Case T‑166/10

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

24April 2012(*)

(Action for annulment – Decision awarding Community financial assistance to improve the environmental performance of the freight transport system – Marco Polo II programme – Termination of the grant agreement and definitive abandonment of the project – No longer any interest in bringing proceedings – No need to adjudicate)

In Case T‑166/10,

Samskip Multimodal Container Logistics BV, established in ’s‑Gravenzande (Netherlands), represented by K.Platteau, Y.Maasdam and P.Broers, lawyers,

applicant,

v

European Commission, represented by K.Simonsson, acting as Agent, assisted by J.Grayston and P.Gjørtler, lawyers,

defendant,

APPLICATION for annulment of Commission Decision C(2010)580 of 27January 2010 on the financial assistance for proposals for actions submitted in the 2009 selection procedure in the European Union programme ‘improving the environmental performance of the freight transport system’ (the Marco PoloII programme), in so far as it selects Proposal TREN/B4/SUB/01‑2009 MP‑II/6 concerning the G2G@2XL project for funding in the amount of EUR2190539,

THE GENERAL COURT (Fourth Chamber),

composed of I.Pelikánová (Rapporteur), President, K.Jürimäe and M.van der Woude, Judges,

Registrar: J.Weychert, Administrator,

having regard to the written procedure and further to the hearing on 31January 2012,

gives the following

Judgment

Background to the dispute

1Article 1 of Regulation (EC) No1692/2006 of the European Parliament and of the Council of 24October 2006 establishing the second ‘Marco Polo’ programme for the granting of Community financial assistance to improve the environmental performance of the freight transport system (Marco PoloII) and repealing Regulation (EC) No1382/2003 (OJ 2006 L328, p.1) establishes a financing instrument, referred to as ‘the Marco Polo II programme’, designed, inter alia, to enhance intermodal transport, thereby contributing to an efficient and sustainable transport system which provides added value at European Union level without having a negative impact on economic, social or territorial cohesion.

2It is clear both from recital 14 in the preamble to Regulation No1692/2006 and from the guidance documents relating to the Marco PoloII programme, published by the European Commission on its website dedicated to that programme, that modal shift actions can be granted financial assistance only in those cases where goods previously transported by road are moved by another, more environmentally-friendly means of transport (such as rail transport, short sea shipping or internal waterways).

3Within the Commission, the Directorate-General for Mobility and Transport has responsibility for policy and actions within the field of transport. The Executive Agency for Competitiveness and Innovation (EACI), a Commission agency established under Council Regulation (EC) No58/2003 of 19December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L11, p.1), is responsible for performing certain tasks connected with the management of Community programmes, including all aspects of the organisation of calls for proposals and selection processes relating to the Marco PoloII programme.

4On 5February 2008, the Commission published a call for proposals inviting interested parties to submit proposals for actions with a view to being granted Community funding under the Marco PoloII programme (OJ 2008 C31, p.13). That call for proposals covered five types of action, including modal shift actions.

5The companies 2XL NV and 2XL Bulgaria OOD (collectively referred to hereinafter as ‘2XL’) submitted a proposal for a modal shift action with a view to receiving a grant for a project called G2G@2XL. The service proposed within the framework of that project was a rail transport and short sea shipping service linking Austria, Switzerland and Italy with the United Kingdom.

6The applicant did not submit a proposal.

7On 27January 2010, the Commission adopted Decision C(2010)580 (‘the contested decision’), which was addressed to the EACI and instructed the latter to conclude grant agreements for 22 projects, including 15 modal shift action projects, among which was the G2G@2XL project. The value of the maximum grant awarded to that project by the Commission was EUR2190539.

8In March 2010, the grant agreement relating to the G2G@2XL project was concluded between the EACI, acting under the authority of the Commission, and the representative of 2XL.

Procedure and forms of order sought

9By application lodged at the Registry of the General Court on 7April 2010, the applicant brought the present action.

10On 16January 2012, in response to a measure of organisation of procedure adopted by the Court, the Commission produced certain documents and responded to written questions from the Court.

11The applicant claims that the Court should:

–annul the contested decision in so far as it selects the G2G@2XL project for funding amounting to EUR2190539;

–order the Commission to pay the costs.

12The Commission contends that the Court should:

–dismiss the action as inadmissible;

–in the alternative, dismiss the action as manifestly devoid of any legal basis;

–in the further alternative, dismiss the action as unfounded;

–order the applicant to pay the costs.

Law

13Under Article 113 of its Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it. In the present case the Court considers that it has sufficient information from the documents in the file to give a decision without taking further steps in the proceedings.

14It must be borne in mind that, according to established case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which the action will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, otherwise there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see Case C‑362/05P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42 and the case-law cited).

15Thus, it has been held that there was no longer any need to adjudicate on the action in the event that an applicant who initially had a legal interest in bringing proceedings lost all personal interest in having the contested decision annulled by reason of an event which occurred after that application had been lodged (Case T‑301/01 Alitalia v Commission [2008] ECR II‑1753, paragraph 37).

16In the present case, it is clear both from the Commission’s replies to the written questions from the Court and from the documents produced by the Commission that, by letter of 31October 2011, 2XL terminated the grant agreement relating to the G2G@2XL project by reason, inter alia, of the poor reception of that project by the target customers. Following EACI approval, the effective date of termination of that agreement was 3January 2012. According to the Commission’s forecasts, of the advance payment of EUR1533377 received by 2XL, the latter will have to repay approximately EUR1500000.

17At the hearing, the Commission explained that the G2G@2XL project had been definitively abandoned and that, although the period within which 2XL might submit evidence to justify the definitive acquisition by the 2XL companies of a part of the advance payment received by them had not yet expired, it seemed unlikely, given the low number of contracts concluded under that project, that that portion of the advance payment could significantly exceed EUR35000.

18In those circumstances, the parties stated at the hearing that they took the view that the present dispute had become devoid of purpose, and each requested that the other party be ordered to pay the costs.

19It follows that there is no longer any need to adjudicate on the present action.

Costs

20Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

21The Court takes the view that, in the particular circumstances of the present case, it would be a proper application of the foregoing provision to order the Commission to bear four fifths of the applicant’s costs and four fifths of its own costs. The applicant shall bear one fifth of the Commission’s costs and one fifth of its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.Declares that there is no longer any need to adjudicate on the present action;

2.Orders the European Commission to bear four fifths of the costs of Samskip Multimodal Container Logistics BV and four fifths of its own costs;

3.Orders Samskip Multimodal Container Logistics to bear one fifth of the Commission’s costs and one fifth of its own costs.

Delivered in open court in Luxembourg on 24April 2012.

[Signatures]

** Language of the case: English.