Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

2 October 2014 (*)

(Arbitration clause - Contract relating to Community financial support for a project in the framework of the ‘eContent’ programme - Termination of the contract by the Commission - Reimbursement of eligible costs)

In Case T-340/07 RENV,

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,

applicant,

v

European Commission, represented initially by E. Manhaeve and M. Wilderspin, then by M. Wilderspin, S. Delaude and L. Cappeletti and lastly by S. Delaude and L. Cappeletti, acting as Agents, and by D. Philippe and M. Gouden, lawyers,

defendant,

ACTION on the basis of an arbitration clause, seeking an order that the Commission pay (i) the sums allegedly due to the applicant and (ii) damages, following termination of a contract relating to Community financial support for the project ‘e Content Exposure and Business Opportunities’ (Contract No EDC-53007 EEBO/27873), concluded in the framework of the multiannual Community programme to stimulate the development and use of European digital content on the global networks and to promote linguistic diversity in the information society,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 7 February 2014,

gives the following

Judgment

 Background to the dispute

1        On 22 December 2000, the Council of the European Union adopted Decision 2001/48/EC adopting a multiannual Community programme to stimulate the development and use of European digital content on the global networks and to promote linguistic diversity in the information society (OJ 2001 L 14, p. 32).

2        Following a call for proposals by the Commission of the European Communities in the context of that multiannual Community programme, a contract relating to the ‘e-Content Exposure and Business Opportunities’ project (‘the eEBO contract’ and ‘the eEBO project’) was concluded on 3 July 2002 between the applicant, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, and the European Community, represented by the Commission.

3        The principal provisions of the eEBO contract were described in paragraphs 4 to 12 of the judgment of 9 February 2010 in Evropaïki Dynamiki v Commission (T-340/07, EU:T:2010:33, ‘the judgment of the General Court’) in the following terms:

‘4      The tasks to be fulfilled by the applicant within the context of the eEBO project were, in accordance with Article 1(1) of the [eEBO contract], defined in Annex I thereto, entitled “Description of Work” (“the technical annex”). The conditions of performance of those tasks were set out in Annex II to the [eEBO contract], entitled “General Conditions” (“the general conditions”).

...

7      The maximum financial contribution for the eEBO project was fixed at EUR 500 000, in accordance with Article 3 of the [eEBO contract]. The conditions governing reimbursement of the eligible costs were set out in Articles 13 to 16 of the general conditions ...

8      Under Article 5 of the [eEBO contract], “[t]he Court of First Instance of the European Communities and, in the case of an appeal, the Court of Justice of the European Communities shall have sole jurisdiction to hear any disputes between the Community, on the one hand, and the contractors, on the other hand, as regards the validity, the application or any interpretation of this contract”, which was governed by the law of Luxembourg.

9      ...

11      Article 7(3)(b) of the general conditions provided that “[t]he Commission [could] immediately terminate [the eEBO] contract … from the date of receipt of the registered letter with acknowledgement of receipt sent by [it] … where the participant directly concerned [had] not fully performed his contractual obligations despite a written request from the Commission … to remedy a failure to comply with such obligations within a period not exceeding one month”.

12      Article 7(6) provided that “contractors [were to] take appropriate action to cancel or reduce their commitments, upon receipt of the letter from the Commission notifying them of the termination of the [eEBO] contract”.’

4        The sixth subparagraph of Article 7(6) of the general conditions of the eEBO contract (‘the general conditions’) stated:

‘In the event of termination of the contract ...:

(a)      pursuant to ... paragraph 3(b) ... of this Article, the Commission may require repayment of all or part of the Community’s financial contribution, taking into account the nature and results of the work carried out and its usefulness to the Community in the context of this promotion of the European digital content on the global networks activities.’

5        Under the terms of Article 13 of the general conditions, entitled ‘Eligible costs - general principles’,

‘1.      Eligible costs are the costs defined in Articles 14 and 15 of [the general conditions]. They shall fulfil the following conditions:

-        be necessary for the project,

-        be incurred during the duration of the project,

-        be determined in accordance with the accounting principle based on historic costs …, provided that they are regarded as being acceptable by the Commission,

-        be recorded in the accounts …,

and

-        exclude any profit margin.’

6        Article 13(3) of the general conditions listed certain ineligible costs. These included, in particular, indirect taxes and duties, such as value added tax (VAT), and entertainment and hospitality expenses, except such reasonable expenses accepted by the Commission as being absolutely necessary for carrying out the contract.

7        Article 14 of the general conditions, entitled ‘Direct costs’, provided:

‘1. Personnel

With regard to personnel costs,

(a)      Only the costs of the actual hours worked by the persons directly carrying out the scientific and technical work under the project may be charged to the [eEBO] contract.

In compliance with Article 8(3) of [these general conditions] such persons must:

-        be directly hired by the participant in accordance with his national legislation,

-        be under the sole technical supervision of the latter

and

-        be remunerated in accordance with the normal practices of the participant, provided that these are regarded as acceptable by the Commission.

All the working time charged to the [eEBO] contract must be recorded throughout the duration of the project … and be certified at least once a month by the person in charge of the work designated by the participant …

…

4. Travel and subsistence

Actual travel and related subsistence costs for personnel working on the project may be charged to the [eEBO] contract.

…

5. Consumables

The actual costs relating to consumables … specifically acquired for the project and whose purpose so justifies may be charged to the contract.

…

8. Other specific costs

Other specific actual costs … shall only be eligible subject to prior written approval of the Commission unless they are already provided for in Annex I to this contract.’

8        Lastly, Article 16 of the general conditions stated:

‘Eligible costs shall be reimbursed where they are justified by the participant … To this end, the participant shall maintain, on a regular basis and in accordance with the normal accounting conventions of the State in which he is established, the accounts for the project and appropriate documentation to support and justify in particular the costs and time reported in his cost statements. This documentation must be precise, complete and effective.’

9        The background to the dispute was set out in paragraphs 14 to 45 of the judgment of the General Court.

 Procedure before the General Court and the Court of Justice

10      By application lodged at the General Court Registry on 4 September 2007, the applicant brought an action under Articles 235 EC, 238 EC and 288 EC for an order that the Commission pay it the sum of EUR 172 588.62, constituting unpaid eligible costs incurred in the framework of the contract at issue, together with the sum of EUR 1 000 to make good the damage allegedly caused to the applicant’s ‘fame and goodwill’.

11      That action led to the judgment of the General Court, which rejected the two pleas of the action alleging, first, failure to comply with contractual obligations and, second, infringement of the principles of sound administration and transparency by the Commission, and a conflict of interest.

12      By document lodged at the Registry of the Court of Justice on 26 April 2010, the applicant brought an appeal under Article 56 of the Statute of the Court of Justice of the European Union against the judgment of the General Court.

13      In its appeal, the applicant claimed that the Court should set aside the judgment of the General Court and then rule on the action itself by allowing that action and awarding the applicant a sum of EUR 172 588.62, corresponding to all of the costs incurred by it and not yet paid by the Commission. Alternatively, by reason of its unlimited jurisdiction, it claimed that the Court should award the applicant the sums of EUR 127 076.48 and EUR 35 503.60, the first corresponding to the costs incurred by the applicant before the termination of the eEBO contract and the second the costs incurred by it after that termination, but closely related to the think-tank summit which it had to organise in the context of the eEBO project.

14      In support of its appeal, the applicant raised two pleas in law, alleging (i) an error of law in the interpretation and application of Article 7(6) of the general conditions and (ii) various inadequacies of reasoning vitiating the judgment of the General Court.

15      By its judgment of 5 May 2011 in Evropaïki Dynamiki v Commission, C-200/10 P, EU:C:2011:281 (‘the judgment of the Court of Justice’), the Court of Justice upheld the third part of the second plea in which the applicant claimed that, by restricting itself to examining the lawfulness of the Commission decision terminating the eEBO contract, without expressing a view on whether or not that institution, even independently of that termination, should be ordered to reimburse the costs incurred prior to the termination, the General Court had not provided an adequate statement of reasons for its decision. In particular, the Court of Justice held:

‘29      The terms of the application … showed clearly that the appellant thereby intended to obtain payment of the costs which it considered to be eligible within the meaning of the [eEBO contract], by criticising, for that purpose, both the allegedly unlawful termination of that contract and, in any event and independently of that termination, the unfounded nature, in its opinion, of the Commission’s partial refusal to assume those costs.

30      However, in the judgment [of the General Court, the latter] merely concerned itself with establishing, first, and as is apparent from paragraphs 75 to 112 of that judgment, that the Commission had not, in terminating that contract, breached its contractual obligations and, secondly, and as is apparent from paragraphs 125 to 143 of that judgment, that that institution had also not breached its contractual obligations as a result of a conflict of interests …

41      … [F]or the purposes of ruling on the claim for compensation which was before the General Court, it was for that court, in the light of the arguments thus exchanged and the evidence adduced by the parties, by taking account both of the rules relating to the burden of proof and of the position taken by those parties, in particular for the purposes of gaining mutual clarification, to examine and expressly determine the questions of whether or not, independently of the termination, the costs both prior to and after that termination, as listed in the three detailed statements that the appellant produced in support of its action, are eligible within the meaning, in particular, of Articles 1(11) and (28) and 13 of the general conditions, whether or not they are justified within the meaning of Article 16 thereof, and, also, whether they must be assumed by the Commission for one of the other reasons alleged by the appellant.

…

43      It follows from all of the foregoing that the third part of the second plea in the appeal must be upheld and that the judgment [of the General Court] must be set aside on that point.’

16      All the other claims raised by the applicant were rejected.

17      Consequently, the Court of Justice set aside the judgment of the General Court in so far as, by that judgment, the latter had failed to rule on the claim of the applicant seeking, notwithstanding the termination of the eEBO contract, an order that the Commission pay it the sum of EUR 172 588.62, corresponding to the costs not already reimbursed by the Commission which were incurred by the applicant in connection with that contract. The Court of Justice also referred the case back to the General Court for judgment on that claim of the applicant, and reserved the costs.

 Procedure and form of order sought by the parties following the referral back of the case

18      The case was initially assigned to the Fifth Chamber of the General Court.

19      Pursuant to Article 119(1) of the Rules of Procedure of the General Court, the parties lodged their statements of written observations on 5 July 2011 and 14 September 2011, respectively.

20      When the composition of the chambers of the Court was altered, the Judge-Rapporteur was assigned to the Sixth Chamber, to which this case was, consequently, assigned.

21      By letter of 21 October 2013, the Court asked the parties whether the Commission’s alternative proposal, whereby it agreed to pay both the amount of EUR 85 971 and the travel costs relating to the first and second cost statement as eligible costs, could provide a basis for the amicable settlement of those proceedings. The Commission endorsed that position, whereas the applicant rejected it.

22      The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 7 February 2014.

23      The applicant claims that the General Court should:

-        order the Commission to pay it the sum of EUR 172 588.62, constituting unpaid eligible costs incurred in the framework of the eEBO contract;

-        order the Commission to pay the costs.

24      The Commission contends that the General Court should:

-        dismiss the applicant’s claim in its entirety;

-        order the applicant to pay the costs.

 Substance

 Preliminary observations

25      When questioned in that regard at the hearing, the parties agreed on the purpose of the present referral, defined in paragraph 41 of the judgment of the Court of Justice. According to that paragraph, it was for the General Court ‘in the light of the arguments thus exchanged and the evidence adduced by the parties, by taking account both of the rules relating to the burden of proof and of the position taken by those parties, in particular for the purposes of gaining mutual clarification, to examine and expressly determine the questions of whether or not, independently of the termination, the costs both prior to and after that termination, as listed in the three detailed statements that the appellant produced in support of its action, [were] eligible within the meaning, in particular, of Articles 1(11) and (28) and 13 of the general conditions, whether or not they [were] justified within the meaning of Article 16 thereof, and, also, whether they [had to] be assumed by the Commission for one of the other reasons alleged by the appellant’.

26      The costs claimed by the applicant are the sum of the three cost statements produced by it under the second paragraph of Article 16 of the general conditions. Those statements are broken down as follows:

27      The first cost statement covers the period from 1 July to 31 December 2002, the second the period from 1 January to 28 April 2003 and the third the period from 29 April to 20 June 2003.

28      At the hearing, the applicant explained that the subject-matter of the present case was the difference between (i) the amount originally claimed by it, corresponding to the sum of the three cost statements, namely EUR 263 103.62, and (ii) the costs accepted as eligible by the Commission in 2004, namely EUR 90 515, that is the total amount of EUR 172 588.62.

29      In that regard, it must be noted that, under Article 274 EC, the Commission is bound by the obligation of sound financial management of Community resources. Under the arrangements for the grant of Community financial aid, the use of that aid is subject to rules which may result in the partial or total repayment of aid that has already been granted. Thus, the beneficiary of financial assistance whose application was approved by the Commission does not thereby acquire any definitive right to full payment of the assistance if he does not satisfy the conditions on which the support depended (judgment of 22 May 2007 in Commission v IIC, T-500/04, ECR, EU:T:2007:146, paragraph 93, and judgment of 17 October 2012 in Commission v EU Research Projects, T-220/10, EU:T:2012:551, paragraph 28).

30      The merits of the applicant’s claims in respect of each cost statement must be examined in the light of those considerations.

 The first and second cost statements

31      The sixth subparagraph of Article 7(6) of the general conditions states that the Commission may, in the event of termination of the contract, require repayment of all or part of the Community’s financial contribution, taking into account the nature and results of the work carried out and its usefulness to the Community in the context of the promotion of the European digital content on the global networks activities.

32      In accordance with that provision, the Commission decided to grant the applicant the sum of EUR 90 515 (see paragraph 38 of the judgment of the General Court). As the Commission accepted at the hearing, that sum refers only to the first and second cost statements, relating to the period preceding the termination of the eEBO contract.

33      In that regard, it must be borne in mind that the Commission owes contributions only in respect of the costs which have been incurred in accordance with the terms of the contract and which have, in particular, been properly documented (judgment in Commission v IIC, EU:T:2007:146, paragraph 99).

34      It is apparent from paragraphs 83 to 111 of the judgment of the General Court that the applicant did not fully perform its contractual obligations. Those considerations were not called into question by the judgment of the Court of Justice.

35      In addition, it is for the contractor, in the context of a contract such as that in the present case, to furnish proof that the costs which it declared to the Commission were, in accordance with Article 13 of the general conditions, actual costs which were in fact necessary and were incurred for implementation of the project and in the course thereof (see, to that effect, the judgment of 24 November 2010 in Commission v Irish Electricity Generating, T-323/09, EU:T:2010:480, paragraph 60 and the case-law cited).

36      The first and second cost statements are not in themselves sufficient to prove that the costs stated were actual costs, that they were in fact necessary and that they were incurred for the implementation of the eEBO contract and in the course thereof. As regards the documents produced by the applicant, they are not sufficient to prove that the costs stated were actually incurred for the implementation of the project beyond those already accepted by the Commission (see, by analogy, judgment in Commission v Irish Electricity Generating, EU:T:2010:480, paragraph 61).

37      It follows that the applicant has not produced any evidence capable of challenging the Commission’s assessment fixing at EUR 90 515 the allowable costs in respect of the first and second cost statements. Consequently, the applicant’s claims in that regard must be dismissed.

 The third cost statement

38      The applicant submits that the third cost statement relates exclusively to the costs of organising the think-tank summit. Those costs are divided into four categories, namely (i) personnel costs and overheads, (ii) travel and related subsistence costs for personnel working on the eEBO project, (iii) costs relating to consumables and (iv) other specific costs.

39      In its letter of 12 November 2004, the Commission stated that it had established the allowable costs on the basis of the experts’ assessment in the course of their technical verification of the effort invested by the applicant in producing the eEBO reports, its achievements and their usefulness to the Community. However, it is apparent from paragraph 32 above that the Commission did not take into account the sums claimed in respect of the third cost statement when it established the allowable costs.

40      Consequently, it is appropriate to examine whether the sums claimed by the applicant in respect of the third cost statement constitute eligible and justified costs which were incurred in accordance with the terms of the contract.

41      In that regard, it must be noted that the third cost statement relates to the period commencing on 29 April 2003, during which the procedure referred to in paragraph 11 above, ‘the red flag procedure’, and subsequently the termination of the eEBO contract, were carried out.

42      At the hearing, the parties agreed that the Commission’s letter of 28 April 2003 was the document by which it had initiated the red flag procedure provided for in Article 7(3)(b) of the general conditions and that the Commission had, pursuant to that provision, terminated the contract by the letter of 16 May 2003, which was received by the applicant on 22 May 2003.

43      It is therefore from 22 May 2003 that the applicant was required, in accordance with the first subparagraph of Article 7(6) of the general conditions, to ‘take [all] appropriate action to cancel or reduce [its] commitments’.

44      In those circumstances, it is appropriate to examine separately the costs incurred before the contract was terminated and those incurred after termination.

 The costs incurred by the applicant before 22 May 2003

45      It is apparent from the third cost statement that only the personnel costs and overheads were incurred before 22 May 2003.

46      It follows from a fundamental principle of Community financial aid that the Community can subsidise only expenses which have actually been incurred. Accordingly, in order for the Commission to be able to carry out checks, the beneficiaries of such aid must show that the costs attributed to subsidised projects are genuine, the provision by those beneficiaries of reliable information being indispensable for the successful operation of the system of control and evidence established in order to check whether the conditions for the grant of aid are satisfied. For the allocation of a specific subsidy to be justified, it is not sufficient, therefore, to show that a project has been carried out. The beneficiary of the aid must, in addition, produce evidence that he has incurred the expenses stated in accordance with the conditions laid down for the grant of the aid concerned, with only those expenses which are properly justified being capable of being regarded as eligible. His obligation to satisfy the prescribed financial conditions is even one of his essential commitments and accordingly determines the allocation of Community financial aid (judgment in Commission v IIC, EU:T:2007:146, paragraph 94, and judgment in Commission v EU Research Projects, EU:T:2012:551, point 29).

47      It is also apparent from the case-law that the obligation, laid down in Community subsidy contracts, to transmit to the Commission, in the form and within the time-limits prescribed, the statements of purportedly eligible costs is mandatory and that the sole purpose of the requirement to produce those cost statements in compliance with all required formalities is to enable the Commission to have the information necessary for checking whether the Community funds were used in accordance with the terms of the contract (judgment in Commission v IIC, EU:T:2007:146, paragraph 95).

48      In the present case, as regards the personnel costs, it must be recalled that Article 14(1) of the general conditions required that ‘all the working time charged to the [eEBO] contract [had to] be recorded throughout the duration of the project … and … certified at least once a month by the person in charge of the work designated by the participant’. It was specified in Article 16 of the general conditions that the documentation had to be ‘precise, complete and effective’.

49      In the light of paragraphs 46 and 47 above, it is sufficient to note that the applicant did not certify at least once a month the working hours recorded in respect of the eEBO project. Consequently, the personnel costs charged to the project by the applicant do not amount to eligible costs within the meaning of Article 13(1) of the general conditions.

50      In any event, the documents provided by the applicant do not establish that the hours stated were ‘[actually] worked by the persons directly carrying out the scientific and technical work under the project’, as required by Article 14(1) of the general conditions.

51      As regards overheads, it is apparent from the third cost statement that they were calculated in proportion to the number of working hours stated. In the absence of any reliable and precise data about the number of working hours counted in respect of the eEBO project, the General Court cannot take into consideration the overheads stated. In any event, those overheads are not based on any appropriate documents capable of justifying them.

52      It follows that the applicant has, in the context of the third cost statement, no right to reimbursement of its alleged personnel costs and overheads incurred before 22 May 2003.

 The costs incurred by the applicant after 22 May 2003

53      As stated in paragraph 43 above, the applicant was required, from 22 May 2003, to take all appropriate action to cancel or reduce its commitments.

54      It is appropriate, first of all, to examine whether the costs incurred after 22 May 2003 in each of the different categories of costs referred to in the third cost statement are eligible and justified.

-       Personnel costs and overheads

55      It is apparent from paragraphs 46 to 52 above that personnel costs and overheads do not constitute, irrespective of the date on which they were incurred, eligible and justified costs within the meaning of Articles 13(1) and 16 of the general conditions. In those circumstances, it is appropriate to disregard the alleged personnel costs and overheads incurred by the applicant after 22 May 2003.

-       Travel and subsistence costs

56      The General Court notes that Article 14(4) of the general conditions provided that travel and related subsistence costs could be charged to the eEBO contract. Those costs, in the amount of EUR 3 935, comprise four Brussels to Athens return flights, two Paris to Athens return flights and two Geneva to Athens return flights.

57      Although those airline tickets were reserved for journeys made between 12 and 17 June 2003, it must be noted that the applicant concluded, on 17 March 2003, a service contract with the travel agency Plano Tourism. Under that contract, the latter was responsible for purchasing three Brussels to Athens return flights, two Paris to Athens return flights and two Geneva to Athens return flights intended for the participants in the think-tank summit. That contract stated that the costs connected with the cancellation of the services provided for after 13 May 2003 would be charged to the applicant. Since that expenditure was incurred before the termination of the contact and could not be cancelled after that termination, they must be considered costs incurred before 22 May 2003.

58      In addition, since the eEBO contract expressly provided for the organisation of a think-tank summit (see paragraph 100 of the judgment of the General Court), those costs are capable of being considered eligible within the meaning of Article 13(1) of the general conditions.

59      In that regard, it must be pointed out that the applicant only provided to the General Court the invoice for the airline ticket reserved in Mr R.’s name for a Brussels to Athens return flight. At the hearing, it stated that it no longer had evidence relating to the other airline tickets reserved, since they had been sent to the Commission in accordance with the usual procedures. The Commission has not disputed that statement.

60      In addition, it is apparent from the think-tank summit programme provided by the applicant that the persons for whom the airline tickets referred to in the third cost statement had been reserved were among the participants invited to that summit. Their names are also included, with the exception of Mr R. whose ticket invoice has been provided, on the invoice for the rooms occupied at the Hilton Hotel, Athens, during that summit. In those circumstances, the travel costs claimed in respect of the third cost statement must be considered actually to have been incurred, notwithstanding the lack of ticket invoices for the participants at the think-tank summit other than Mr R.’s invoice.

61      However, it must be noted that the heading ‘Travel and subsistence costs’ of the third cost statement refers to a Brussels to Athens return journey that is additional to the number of return journeys provided for in the contract concluded with Plano Tourism. In those circumstances, the General Court may consider eligible only three of the four Brussels to Athens return tickets claimed by the applicant. Since those tickets are for different amounts, namely EUR 800, EUR 269 and twice EUR 443, it is appropriate to subtract the average price of such a journey on the basis of the Brussels to Athens return journeys stated by the applicant, that is to say EUR 488.75.

62      In the light of the foregoing, it is appropriate to grant the applicant the sum of EUR 3 446.25 in respect of the travel and subsistence costs included in the third cost statement.

-       Others specific costs

63      In the third cost statement, the applicant claims, in respect of the other specific costs, reimbursement of the hire of eight hotel rooms for the duration of the summit, related room service, the technical costs for the room which it hired and the costs for the Internet connexion during the think-tank summit.

64      According to Article 14(8) of the general conditions, the other specific costs must not come into any of the other categories of costs set out in the other paragraphs of that article. The costs referred to in paragraph 63 above amount to costs relating to consumables within the meaning of Article 14(5) of the general conditions and must therefore be examined as such.

-       Consumables

65      The specific costs claimed by the applicant under the heading ‘Consumables’ of the third cost statement, in the amount of EUR 9 630, correspond to the hire of the room in the Hilton Athens and food and beverages for the summit.

66      In that regard, the Court notes that Article 14(5) of the general conditions stated that the costs relating to consumables could be charged to the eEBO contract.

67      Although the costs relating to the hire of eight hotel rooms during the summit, the hiring and technical costs of the conference room, the Internet connexion and reception were incurred at the think-tank conference on 13 June 2003, it must be noted that those costs were provided for in the contract concluded between the applicant and Plano Tourism on 17 March 2003. As set out in paragraph 57 above, that contract stated that the costs connected with the cancellation of the services provided for after 13 May 2003 would be charged to the applicant. Consequently, for the same reasons as those set out in paragraphs 57 and 58 above, those costs must also be considered costs incurred before 22 May 2003 capable of being regarded as eligible.

68      As regards in particular the hire of the hotel rooms for the summit participants, the General Court notes that Mr R.’s name does not appear on the invoice submitted by the applicant. However, it is apparent from an email from Mr R. to the applicant on Monday 16 June 2003 that Mr R. requested reimbursement of a sum corresponding to the amount of his airline ticket and two hotel nights at the rate applied to the other summit participants staying at the Hilton Hotel. In the light of the ticket invoice provided by the applicant (see paragraph 61 above), the General Court finds in the present case that that email constitutes sufficient grounds to consider that the cost of Mr R.’s overnight stays is eligible.

69      In addition, it is appropriate, in accordance with the ninth indent of Article 13(3) of the general conditions to deduct the VAT indicated on the invoice of the stated costs. Consequently, the costs of the overnight stays of the summit participants as stated by the applicant are eligible only to the extent of EUR 3 166.67.

70      As regards the hire of the conference room, its technical equipment and the Internet connexion, it must be noted that the costs stated by the applicant in the third cost statement include VAT. It is therefore appropriate, in accordance with the ninth indent of Article 13(3) of the general conditions, to deduct VAT from them. Consequently, in the light of the invoices submitted by the applicant, the costs relating to the hire of the conference room and its technical equipment are eligible only to the extent of EUR 2 115.26. Similarly, the costs relating to the Internet connection are eligible only in the amount of EUR 114.92.

71      By contrast, as regards the costs relating to the food and beverages provided to the summit participants, the second indent of Article 13(3) of the general conditions stated that entertainment or hospitality expenses were not eligible, except such reasonable expenses accepted by the Commission as being absolutely necessary for carrying out the contract. It is sufficient to note that the applicant has not provided any evidence to prove that the Commission had indicated its agreement as regards that expenditure. Consequently, those costs must be considered ineligible.

72      It follows that the applicant must be awarded the sum of EUR 5 396.85 in respect of all the costs relating to consumables and the other specific costs stated in the third cost statement stemming from the contract concluded with Plano Tourism.

73      The third cost statement refers also to room service which, as is apparent from the invoice submitted by the applicant, corresponds to the telephone calls made by the summit participants staying at the Hilton Athens. For the same reasons as those set out in paragraph 71 above, those costs must be considered ineligible.

74      As regards the costs of hiring an advertisement announcing the summit in the Athens daily newspaper Kathimerini, the invoice for which the applicant added to the file, they do not appear in the costs statement and cannot, therefore, be reimbursed. In any event, like the room service costs referred to in paragraph 73 above, those costs were incurred after the termination of the contract, which the applicant accepted at the hearing.

75      It is apparent from examining the costs stated by the applicant in respect of the third cost statement that none of the costs incurred after the termination of the eEBO contract and not provided for by the contract concluded between the applicant and Plano Tourism constituted eligible and justified costs within the meaning of Articles 13(1) and 16 of the general conditions. In those circumstances, the Commission was entitled to reject the applicant’s request for payment in relation to those costs.

76      Consequently, the amount of eligible costs in respect of the third cost statement amounts to EUR 8 843.10.

77      For all those reasons, the applicant’s claims can only be well founded to the extent of EUR 8 843.10. They must, therefore, be rejected as to the remainder.

 Costs

78      In the judgment of the Court of Justice costs were reserved. It is therefore for the General Court to decide in this judgment on all the costs relating to the various proceedings, in accordance with Article 121 of the Rules of Procedure.

79      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, according to Article 87(3), where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party bear its own costs.

80      In the circumstances of the present case, the Court considers that it is fair to order the Commission to pay 5% of its own costs and 5% of the applicant’s costs, and the applicant to pay 95% of its own costs and 95% of the Commission’s costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Orders the European Commission to pay Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE the sum of EUR 8 843.10;

2.      Dismisses the action as to the remainder;

3.      Orders the European Commission to pay 5% of its own costs and 5% of the costs of Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis, and the latter to pay 95% of its own costs and 95% of the Commission’s costs.

Delivered in open court in Luxembourg on 2 October 2014.

[Signatures]

* Language of the case: English.