Appeal brought on 20 May 2011 by Caixa Geral de Depósitos S.A against the judgment delivered on 3 March 2011 by the General Court (Eighth Chamber) in Case T-401/07 Caixa Geral de Depósitos v Commission
(Case C-242/11 P)
2011/C 219/12
Language of the case: Portuguese

Parties
Appellant: Caixa Geral de Depósitos S.A. (‘CGD’) (represented by N. Ruiz, advogado)
Other parties to the proceedings: European Commission, Portuguese Republic

Form of order sought
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The appellant claims that the Court should set aside the judgment of the General Court in Case T-401/07 and, consequently, consider its action for annulment to have been brought in due form and to be admissible, refer the case back to the General Court for the latter to assess the claim for annulment in part of the contested decision and order the Commission to pay EUR 1 925 858,61 together with default interest and to pay the costs incurred by the appellant;
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Or, in the alternative, the appellant claims that the Court should set aside the judgment of the General Court in Case T-401/07 and, consequently, consider its action for annulment to have been brought in due form and to be admissible, giving a final ruling on the dispute and allowing the claims made by the appellant at first instance.

Pleas in law and main arguments
The appellant raises three pleas in support of its appeal:

1.   The first and principal plea, relating to the appellant’s capacity to bring proceedings and to infringement of Article 263 TFEU
The appellant takes the view that it is directly and individually concerned by the contested decision (1) for it (the appellant), as well as being the operational intermediary, is actually the credit institution that, on its own behalf and at its own risk, in accordance with the decision approving the subsidy and with the agreement concluded with the Commission in order to give effect to that decision, concluded the loan contracts with the final beneficiaries from which the interest credits are derived that are the subject of the subsidy granted by the ERDF.
In addition, the assistance having been granted to CGD in order to offset the subsidies for the interest that that final beneficiaries must pay it, the General Court did not properly consider the question whether the Member State to which the contested decision was addressed might prevent the latter from having any effect in the CGD’s legal sphere, given that the hypothesis in which the State would make up the EDRF contribution in default is merely theoretical.

2.   Second and ancillary plea, relating to the infringement of European Union law by the General Court in considering unfounded the claims of the Portuguese Republic in its judgment of 3 March 2011 in Case T-387/07 Portugal v Commission
The appellant maintains that the judgment in Case T-387/07 did not duly consider whether the contested decision was marred by want of reasoning or by incorrect reasoning, for: (a) the contested decision established no clear connection between the two allegations made against the applicants and the amount to which the assistance granted by the ERDF must finally be reduced; and (b) the General Court ended by basing the lawfulness of the contested decision on reasons different from those relied by the Commission as grounds for reducing the assistance granted by the ERDF.
The judgment in Case T-387/07 is also marred by an error of law, in that it replaces by its own reasoning that of the contested decision.

3.   Third and ancillary plea, relating to whether expenditure was regularly incurred and to infringement of Article 21(1) of Regulation No 4253/88  (2) and of the agreement
The appellant maintains that the judgment in Case T-387/07 failed to assess properly whether the contested decision was vitiated by the following defects: (a) error of fact and of law too, inasmuch as it assumes that the subsidies for interest on the loans forming part of the SGAIA (global grant for local development) may be paid by the intermediary to the final beneficiaries; (b) error of law, in that it holds it to be impossible for the conditions laid down in Article 13(3) of Regulation No 2052/88 (3) to be considered to be satisfied later when the total subsidy was computed; (c) error of law, in that the judgment considers that the SGAIA must follow a closure procedure ensuring that the sums corresponding to the subsidies for interest falling due should be debited from the special account and/or deposited in a second special bank account until 31 December 2001, failing which the corresponding expenditure might not be considered incurred by that date; (d) error of law, in that it considers that the SGAIA must follow a closure procedure ensuring that the sums corresponding to the subsidies for interest falling due on 31 December 2001 should be advanced to the final beneficiaries and, consequently, debited from the special account by 31 December 2001, failing which the corresponding expenditure might not be considered incurred by that date.
(1)  Commission Decision C(2007) 3772 of 31 July 2007 reducing the financial assistance granted by the European Regional Development Fund (ERDF) to the global grant for local development in Portugal by Commission Decision C(95) 1769 of the European Commission of 28 July 1995.
(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).
(3)  Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 185, p. 9).

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