34In paragraphs 88 and 89 of the judgment under appeal, the Court of First Instance set out the Commission's argument alleging unlawful collusion between the Head of Division of DG XXIII, Mr Tzoanos, referred to in paragraph 10 of the present judgment, 01-Pliroforiki and IPK. It went on to dismiss that plea in the following terms:90 ... there is no mention in either the contested decision or the letter of 30 November 1993, to which the [contested] decision refers, of collusion between Mr Tzoanos, 01-Pliroforiki and [IPK], which prevented payment of the second instalment of the aid to IPK. The [contested] decision and the letter of 30 November 1993 do not, furthermore, give any indication that the Commission considered that the way in which the aid had been granted to IPK was irregular. In those circumstances, the Commission's explanation concerning the alleged existence of collusion between the parties concerned cannot be regarded as clarifying in the course of the proceedings the reasons stated in the contested decision (see, to that effect, Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case T-16/91 RV Rendo and Others v Commission [1996] ECR II-1827, paragraph 45; and Case T-77/95 RV Ufex and Others v Commission [2000] ECR II-2167, paragraph 54).91 If account is taken of the fact that, under Article 173 of the EC Treaty (now, after amendment, Article 230 EC), the Court of First Instance must confine itself to a review of the legality of the contested decision on the basis of the reasons set out in that measure, the Commission's argument concerning the principle fraus omnia comimpit cannot be upheld.92 It must be added that if the Commission, having adopted the contested decision, had taken the view that the evidence mentioned in paragraph 89 above was sufficient to conclude that there was collusion between Mr Tzoanos, 01-Pliroforiki and [IPK] which had vitiated the procedure by which aid was allocated to the... project, rather than pleading in the present proceedings a ground which was not mentioned in the contested decision, it could have withdrawn that decision and adopted another decision not only refusing to pay the second instalment of the aid but also ordering repayment of the instalment that had already been paid.93 Accordingly, the contested decision must be annulled without there being any need to consider the other plea advanced by [IPK].’
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