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

JUDGMENT OF THE COURT (Tenth Chamber)

14 November 2024 (*)

( Appeal - Projects funded by the European Union in the area of research - Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) - Project ALL-GAS - Regulation (EC) No 1906/2006 - Grant agreement - Consortium agreement - Exclusion of a participant - Ineligible costs - Debit notes - Article 299 TFEU - Regulation (EU, Euratom) 2018/1046 - Article 100(2) - Enforceable decision - Recovery decision - Action for annulment )

In Case C‑781/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 December 2022,

LE, represented by M. Straus, advocaat,

appellant,

the other party to the proceedings being:

European Commission, represented by L. André, E. Garello and S. Romoli, acting as Agents,

defendant at first instance,

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, I. Jarukaitis (Rapporteur), President of the Fourth Chamber, and Z. Csehi, Judge,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        By its appeal, LE seeks to have set aside the judgment of the General Court of the European Union of 26 October 2022, LE v Commission (T‑475/20, EU:T:2022:672; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of Commission Decision C(2020) 3988 final of 9 June 2020 relating to the recovery of a principal amount of EUR 275 915.12 from it (‘the decision at issue’).

 Legal context

 Decision No 1982/2006/EC

2        Article 7 of Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) (OJ 2006 L 412, p. 1), entitled ‘Monitoring, evaluation and review’, stated in paragraph 1 thereof:

‘The [European] Commission shall continually and systematically monitor the implementation of the Seventh Framework Programme and its specific programmes and regularly report and disseminate the results of this monitoring.’

 Regulation (EC) No 1906/2006

3        Article 18 of Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013) (OJ 2006 L 391, p. 1), entitled ‘General’, provided:

‘…

2.      The Commission shall draw up, on the basis of the model provided for in Article 19(8) and taking into account the characteristics of the funding scheme concerned, a grant agreement between the Community and the participants.

…

6.      Participants shall ensure that the Commission is informed of any event which might affect the implementation of the indirect action or the interests of the Community.

7.      Where provided for in the grant agreement, the participants may subcontract certain elements of the work to be carried out to third parties.

…’

4        Under Article 26 of that regulation, entitled ‘Changes in the consortium’:

‘1.      The participants in an indirect action may agree to add a new participant or to remove an existing participant in accordance with the respective provisions in the consortium agreement.

…

4.      The consortium shall notify any proposed change of its composition to the Commission, which may object within 45 days of the notification.

Changes in the composition of the consortium associated with proposals for other changes to the grant agreement which are not directly related to the change in composition shall be subject to written approval by the Commission.’

5        Article 27 of that regulation, entitled ‘Monitoring and evaluation’, provided:

‘1.      The Commission shall monitor the implementation of indirect actions on the basis of the periodic progress reports submitted pursuant to Article 19(4).

In particular, the Commission shall monitor the implementation of the plan for the use and dissemination of foreground, submitted pursuant to the second subparagraph of Article 20(1).

For those purposes, the Commission may be assisted by independent experts appointed in accordance with Article 17.

…

3.      The monitoring and evaluation referred to in Article 7 of Decision [No 1982/2006] shall include aspects relating to the application of this Regulation, in particular aspects relevant for [small and medium-sized enterprises (SMEs)], and shall address the budgetary impact of the changes in the cost calculation regime as compared to the Sixth Framework Programme and its effects on the administrative burden for participants.

…’

6        As provided in Article 37 of Regulation No 1906/2006, entitled ‘Recovery’:

‘The Commission may adopt a recovery decision in accordance with the Financial Regulation.’

 Regulation (EU, Euratom) 2018/1046

7        Article 188 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), entitled ‘General principles applicable to grants’, provides:

‘Grants shall be subject to the principles of:

(a)      equal treatment;

(b)      transparency;

…

(e)      non-retroactivity;

(f)      no-profit.’

8        Under Article 201 of that regulation, entitled ‘Grant agreement’:

‘1.      Grants shall be covered by a written agreement.

…

4      Amendments to grant agreements shall not have the purpose or the effect of making such changes that would call into question the grant award decision or be contrary to the principle of equal treatment of applicants.’

 The background to the dispute and the decision at issue

9        The background to the dispute is set out in paragraphs 2 to 29 of the judgment under appeal and, for the purposes of the present proceedings, may be summarised as follows.

10      On 28 June 2011, the Commission and the coordinator of a consortium of seven entities, which included the appellant, signed a grant agreement concerning the financing of the ALL-GAS project from the funds of the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) (‘the grant agreement’).

11      The grant agreement established a financial contribution from the Commission of a maximum amount of EUR 7 106 680. Pre-financing of EUR 2 487 338 was paid to the consortium coordinator on 27 July 2011. Of that amount, the appellant received EUR 514 552.91 by way of pre-financing, paid in two instalments on 8 September 2011 and 28 June 2012, and EUR 270 187.90 by way of interim payment, paid on 12 February 2013.

12      Article 7.1 of that agreement refers to two of the appellant’s subsidiaries as third parties linked to it (‘linked third parties’), to whom, in accordance with the principles established in Articles II.14 and II.15 of Annex II to that agreement, relating to the ‘General conditions’, the appellant had the option of subcontracting certain tasks necessary for the implementation of the ALL-GAS project. Under Article 7.2 of that agreement, the appellant was authorised to charge the costs incurred by the linked third parties for carrying out those tasks. However, under Article 7.4 of the grant agreement, the appellant, as beneficiary, retained sole responsibility in respect of the European Union and the other beneficiaries for the linked third parties and was required to ensure that those third parties abided by the provisions of that agreement.

13      Having found a ‘significant level of distrust amongst the consortium partners which [had an impact] upon the implementation of the project’, by letter of 8 August 2013 sent to the consortium coordinator, the Commission suspended execution of the grant agreement. On 14 August 2013, the entities in the consortium, including the appellant, were informed of the Commission’s decision to suspend execution of that agreement.

14      By letter of 14 August 2013, the coordinator informed the Commission of the existence of wrongdoings allegedly committed by the appellant.

15      By letter of 26 September 2013, with which the consortium coordinator’s letter of 14 August 2013 was enclosed, stating the seriousness of the appellant’s conduct, the other entities in that consortium notified the appellant of their intention to terminate its participation and that of the linked third parties in the grant agreement. By email of 21 December 2013 sent to the Commission, the appellant confirmed that it had been informed of the latter’s intention to approve the request of the other entities in the consortium to terminate its participation in the grant agreement and that it accepted that termination.

16      By letter of 20 June 2014, the Commission accepted the proposal to terminate the appellant’s participation in the grant agreement from 26 July 2013 and to amend that agreement accordingly.

17      On 5 November 2014, the Commission sent to the consortium coordinator the payment letter for the second interim period of the project, in which it stated that an amount of EUR 487 669.65 should be recovered from the appellant.

18      By letter of 18 November 2014, signed by the representatives of all the entities in the consortium except the appellant, the appellant was requested to reimburse the amount of EUR 487 669.65. That letter was received by the appellant on 19 December 2014.

19      From February 2015, a series of exchanges between the appellant and the Commission ensued as regards clarifications as to the calculation of the costs incurred by the appellant and the linked third parties for carrying out the ALL-GAS project, and a meeting took place on 8 January 2016. From 11 to 15 April 2016, one of the linked third parties was subject to an audit covering costs declared for the period from 1 May 2011 to 26 July 2013.

20      On 14 October 2016, the draft audit report was sent by the auditor to the linked third party concerned, which was invited to submit its observations. On 11 November 2016, that linked third party sent its observations on that draft. On 16 December 2016, the Commission sent to that linked third party the letter of its findings with the final audit report.

21      The ineligible costs of the linked third party concerned, reported by the auditors, which led to an undue EU contribution, amounted to EUR 10 910.01. The liquidated damages claimed amounted to EUR 963.80.

22      By a first pre-information letter of 26 October 2017, the appellant, in its capacity as beneficiary with sole responsibility in respect of the European Union for the linked third party concerned, was notified of the Commission’s intention to recover those amounts.

23      By a second pre-information letter also dated 26 October 2017, the appellant was informed of the Commission’s intention to recover from it the amount of EUR 346 627.56, that is to say, the difference between the pre-financing sum and the interim payment made to it, amounting to EUR 784 740.81, and the EU contribution actually accepted as eligible, namely EUR 438 113.25.

24      The two pre-information letters of 26 October 2017 (‘the pre-information letters’) informed the appellant of the possibility of submitting observations within 30 days of their receipt.

25      On 23 November 2017, the Commission received an email from the appellant in response to the second pre-information letter.

26      By letter dated 19 February 2018, the Commission communicated to the appellant its findings, in which it accepted an additional eligible EU contribution in an amount of EUR 82 586.25.

27      By debit notes Nos 3241801992, 3241803362 and 3241803343 sent on 21 March 2018, the Commission requested the appellant to pay the sums of EUR 264 041.31, EUR 10 910.01 and EUR 963.80 by 7 May 2018.

28      Since the payment reminder and the letters of formal notice were unsuccessful, the Commission adopted the decision at issue on 9 June 2020 relating to the recovery of the amount of EUR 275 915.12, plus interest.

 The procedure before the General Court and the judgment under appeal

29      By application lodged at the Registry of the General Court on 9 August 2020, the appellant brought an action seeking the annulment of the decision at issue, the pre-information letters and debit notes relating thereto, as well as the execution and implementation of that decision by the Commission and any authorised bodies. In the alternative, the appellant asked the General Court to give a ruling or to take any other measures it deemed just and appropriate.

30      In support of its action, the appellant put forward five pleas in law, alleging (i) a breach of the principles that action must be taken within a reasonable time and of equal treatment, (ii) the failure to state reasons, (iii) a breach of the right to be heard and of the principle of equal treatment, (iv) a breach of the principle of the protection of legitimate expectations, and (v) a breach of the principle of good administration.

31      The Commission contended that the action should be dismissed.

32      By the judgment under appeal, the General Court dismissed the action in its entirety.

33      In paragraphs 38 to 45 of that judgment, the General Court first examined the main head of claim of the action in so far as it sought the annulment of the pre-information letters and debit notes relating to the decision at issue.

34      Relying on the judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562), and of 16 July 2020, ADR Center v Commission (C‑584/17 P, EU:C:2020:576), the General Court considered that both the pre-information letters and the debit notes relating to the decision at issue were measures forming part of the context of the grant agreement and that their purpose was the recovery of a debt which was based on the provisions of that agreement, with the result that it rejected as inadmissible the main head of claim in so far as it sought the annulment of the pre-information letters and the debit notes relating to the decision at issue.

35      The General Court then examined that head of claim in so far as it sought the annulment of the decision at issue. In that regard, the General Court, in paragraphs 49 to 111 of the judgment under appeal, rejected all of the pleas in law of the action.

36      Lastly, as regards the head of claim submitted in the alternative, by which the appellant requested the General Court to give a ruling or to take any other measures as it deemed just and appropriate, without however having explained the nature and scope of the measures applied for, the General Court, in paragraph 113 of the judgment under appeal, after recalling that the claims contained in the application bringing the proceedings must be provided in a clear and accurate manner, rejected it as inadmissible.

37      Consequently, the General Court dismissed the action in its entirety, while considering that it was not necessary to rule on the admissibility of the annexes to the reply.

 Procedure before the Court of Justice

38      By separate document, lodged at the Registry of the Court of Justice on 23 December 2022, LE filed an application for interim measures seeking, first, the suspension of the operation of the judgment under appeal and, second, the adoption of any other just and appropriate interim measure.

39      By order of the Vice-President of the Court of Justice of 17 March 2023, LE v Commission (C‑781/22 P-R, EU:C:2023:226), that application was rejected, since LE failed to demonstrate that the condition relating to urgency was met.

 Forms of order sought by the parties before the Court of Justice

40      The appellant claims, in essence, that the Court should:

–        set aside the judgment under appeal and refer the case back to the General Court so that it may rule on the complaints and pleas in law raised against the decision at issue;

–        in the alternative, order or take preliminary measures for hearing witnesses or providing evidence supporting the case, before ruling on the main proceedings, set aside the judgment under appeal and, if the Court of Justice deems it appropriate, refer the case back to the General Court for it to rule on the complaints and pleas in law raised against the decision at issue;

–        in the further alternative, give a ruling or take any other measures as the Court shall deem just and appropriate;

–        ‘[pursuant to] the request for interim measures’, issue the interim measures applied for by separate document; and

–        order the Commission to pay the costs.

41      The Commission contends that the Court should dismiss the appeal as manifestly inadmissible or, in the alternative, as unfounded, and order the appellant to pay the costs of the proceedings, including those of the proceedings for interim measures which gave rise to the order of the Vice-President of the Court of Justice of 17 March 2023, LE v Commission (C‑781/22 P-R, EU:C:2023:226).

 The appeal

 Admissibility of the appeal

 Arguments of the parties

42      The Commission contends that the appeal is manifestly inadmissible.

43      In the first place, it maintains that that appeal does not meet the conditions of admissibility laid down in Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union. First, the appellant requests a fresh assessment of the facts and evidence, by merely reiterating the arguments it had put forward at first instance and referring to them. Secondly, it is clear from the case file that the General Court did not distort the facts or evidence submitted to it.

44      In the second place, according to the Commission, the appeal, in so far as it lacks clarity and precision, also fails to meet the conditions of admissibility laid down in Article 168(1)(d) and (3) and in Article 169(2) of the Rules of Procedure of the Court of Justice, as well as in Article 21 of the Statute of the Court of Justice of the European Union.

45      In that regard, the Commission maintains, first, that the appeal makes only vague reference to the judgment under appeal, which is, moreover, neither clearly mentioned in the form of order nor annexed to the appeal. The appellant also failed to indicate the date on which the judgment under appeal was notified to it, as required by Article 168(3) of the Rules of Procedure.

46      Secondly, the Commission claims that the appellant does not set out the grounds of appeal and legal arguments relating to them, which the appellant relies on in support of its form of order, sufficiently clearly, intelligibly and coherently. The latter merely refers to the arguments it put forward at first instance. Furthermore, the appellant merely quotes passages from the judgment under appeal without pointing out any error made by the General Court or indicating precisely the paragraphs of that judgment, which it disputes or even providing any concrete legal argument in support of its allegations.

47      Furthermore, the Commission maintains that the appellant attributes to the General Court vague and imprecise breaches, which it had alleged against the Commission at first instance. In that regard, it stresses that a general reference to the breach of certain principles, such as the principle of equal treatment, without any clear reference to the judgment under appeal, is insufficient to satisfy the requirements of clarity and precision of the grounds of appeal relied on.

48      In the third place, the Commission maintains that the heads of claim set out in the appeal do not meet the requirements of Article 168(1)(e) of the Rules of Procedure and Article 21 of the Statute of the Court of Justice of the European Union.

49      First, the appellant’s claim that the Court of Justice should ‘take the preliminary measures as requested in the separate request’ is inadmissible in so far as such a request would itself have to be made by separate document under Article 160(4) of the Rules of Procedure.

50      Secondly, the claim that the Court of Justice should set aside ‘the judgment of the General Court on the request for annulment of or another ruling concerning the dispute in relation to the [decision at issue],’ and that seeking that the case be referred back to the General Court ‘for further proceedings on pleas and objections raised by [LE], also on behalf of its linked parties,’ are inadmissible in so far as the first claim does not contain a clear reference to the judgment which should be set aside and the second claim, which is moreover not justified, appears to have been raised also on behalf of other entities, whose identity is not specified, which are not parties to the present proceedings.

51      Thirdly, the Commission argues that the claims submitted by the appellant in the alternative are also inadmissible. As regards the claim concerning the hearing of witnesses or the production of evidence and the annulment of the judgment under appeal, it is inadmissible in so far as, first, the wording used by the appellant lacks precision and, second, the General Court has already established the facts of the case and the evidence which supports them. As regards the claim that the judgment under appeal be set aside, it lacks precision and is identical to the principal claim.

52      Fourthly, the Commission maintains that the appellant’s claim, made in the further ‘alternative’ seeking the adoption of ‘such other measures as the [Court of Justice] shall deem just and appropriate’ must be declared inadmissible on the grounds that the appellant fails to indicate either the nature or the scope of those measures and that that claim therefore lacks clarity and precision.

53      The appellant submits that the Commission’s arguments should be rejected.

 Findings of the Court

54      As regards, in the first place, the argument that the appellant, by its appeal, limits itself to seeking a fresh assessment of the facts by merely reiterating the arguments which it put forward at first instance and referring to them, it should be borne in mind that, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law. Accordingly, the General Court has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The establishment of those facts and the assessment of that evidence do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice (see, to that effect, judgment of 9 November 2023, Global Silicones Council and Others v ECHA, C‑559/21 P, EU:C:2023:842, paragraph 50 and the case-law cited).

55      In this case, however, several grounds of appeal raise, at least in part, questions of law, so that that appeal cannot be dismissed out of hand as inadmissible in its entirety. Consequently, the argument set out in paragraph 43 of this judgment must be rejected.

56      As regards, in the second place, the appeal’s alleged lack of clarity and precision, it should first be recalled, with regard to the line of argument to the effect that the appellant did not attach the judgment under appeal to its appeal, that Article 168(1)(b) of the Rules of Procedure provides that an appeal is to contain a reference to the decision of the General Court appealed against, without requiring that that decision be attached to the appeal (see, to that effect, judgment of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraphs 47 and 48).

57      Thus, the fact that the judgment under appeal was not attached to the appeal cannot result in the latter being declared inadmissible. Therefore, the Commission’s arguments in that regard must be rejected.

58      Next, as regards the line of argument to the effect that the appeal only makes ‘vague reference’ to the judgment under appeal, it should be noted, first, that, admittedly, the appeal mainly refers to ‘the judgment of the General Court concerning the [decision at issue]’. However, in paragraph 1.3 of that appeal, the appellant states that ‘the General Court has provided its judgment [on] October 27, 2022, which was ruled [on] 26 October 2022. The number of the judgment is T‑475/20’. Therefore, the appeal refers sufficiently clearly to the judgment which is being challenged. Secondly, it must be stated that, accordingly, the appeal does indeed mention the date on which the judgment under appeal was notified to the appellant, as provided for in Article 168(3) of the Rules of Procedure. Consequently, the argument set out in paragraph 45 of this judgment has no factual basis and must therefore be rejected.

59      Lastly, as regards the line of argument to the effect that the appellant has not set out sufficiently clearly, intelligibly and coherently the grounds of appeal and legal arguments in support of them which it relies on in support of its claims, by merely referring to the arguments it put forward at first instance without alleging any error made by the General Court or indicating precisely the paragraphs of the judgment under appeal that it challenges or even providing specific legal arguments in support of its allegations, it is important to recall that, according to settled case-law, it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, as well as from Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment under appeal and the legal arguments specifically advanced in support of that appeal, failing which the appeal or ground of appeal in question will be dismissed as inadmissible (see, in particular, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 29 and the case-law cited).

60      Accordingly, an appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the argument is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be dismissed as inadmissible (order of 12 September 2018, NF and Others v European Council, C‑208/17 P to C‑210/17 P, EU:C:2018:705, paragraph 13 and the case-law cited). The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the paragraphs of the judgment under appeal which may be vitiated by an error of law must be dismissed as manifestly inadmissible (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 30 and the case-law cited).

61      In this case, although the submission of the arguments put forward in support of the appeal could have been expressed more clearly in order to facilitate understanding, the fact remains that that appeal indicates the paragraphs of the judgment under appeal which are contested and includes a series of legal arguments relating precisely to clearly identified elements of the judgment under appeal.

62      Consequently, it cannot be considered that the appeal must be dismissed at the outset as inadmissible in its entirety on the ground that, taken as a whole, it does not satisfy the requirements set out in paragraphs 59 and 60 of this judgment. That is, however, without prejudice to the admissibility of specific parts of the grounds of appeal and arguments submitted by the appellant in support of its appeal, which will be assessed, where appropriate, in the context of their examination.

63      In the third place, as regards the line of argument set out in paragraphs 48 to 52 of this judgment, in so far as it concerns, first of all, the appellant’s claim that the Court should ‘take the preliminary measures as requested in the separate request’, it is sufficient to note that, as is clear from the form of order sought in the appeal, the appellant submitted that head of claim ‘[pursuant to] the request for interim measures’ and specified that that request had been made by separate document, lodged at the Registry of the Court of Justice on 23 December 2022, with the result that it cannot be considered that that claim has been made in respect of the substance of the appeal.

64      Next, as has already been noted, in essence, in paragraph 58 of this judgment, it is sufficiently clear from the form of order sought in the appeal that the main head of claim concerns the judgment under appeal and that the appellant seeks to have it set aside and to have the case referred back to the General Court so that it may rule on the complaints and pleas in law raised against the decision at issue. Furthermore, the fact that the appellant mentions that those complaints and pleas in law are raised not only on its own behalf, but ‘also on behalf of its linked parties’ has no bearing on the admissibility of the appeal.

65      Lastly, likewise, the Commission’s line of argument to the effect that the appellant’s claim made in the alternative, which seeks the hearing of witnesses or the production of documents, is inadmissible must be rejected in so far as it is not capable of leading to the inadmissibility of the appeal as a whole. By contrast, it must be stated that the appellant’s claim in the further alternative, seeking that the Court take ‘such other measures which the [Court of Justice] shall deem just and appropriate’, must, as the Commission maintains, be rejected as inadmissible under the case-law referred to in paragraphs 59 and 60 of this judgment.

66      Therefore, in the light of all of the foregoing considerations, it must be stated that the appeal cannot be dismissed as inadmissible in its entirety.

 The substance

67      In support of its appeal, the appellant relies, in essence, on four grounds, alleging, (i) and (ii) a failure to state reasons and a breach of the obligation to respond to the heads of claim and the pleas in law of the parties, (iii), a breach of the right to be heard, the principle of equal treatment and the principle of protection of legitimate expectations, and (iv) a breach of the principle that action must be taken within a reasonable time and the principle of good administration.

 The first ground of appeal

–       Arguments of the parties

68      By its first ground of appeal, alleging a breach of the obligation to state reasons and the obligation to respond to the heads of claim and the pleas in law of the parties, the appellant alleges that the General Court dismissed as inadmissible its principal head of claim in so far as it sought the annulment of the pre-information letters and debit notes relating to the decision at issue.

69      In the first place, the appellant maintains that the General Court considered, in paragraphs 41, 44 and 45 of the judgment under appeal, that, in the present case, those pre-information letters and those debit notes formed part of the context of the grant agreement and that those notes could not be equated to an enforcement order. According to the appellant, a debit note has the character of an invoice and, therefore, marks the starting point for the recovery of the amount shown on it from its recipient, which is generally provided for in the agreement between the parties, which was, however, not the case in the grant agreement. The appellant maintains that the General Court’s position in this regard is not clear and lacks substance.

70      In the second place, the appellant submits that the General Court infringed its rights of defence by failing to take into account important facts and arguments put forward by it. In particular, the General Court failed to check or examine its line of argument to the effect that the resolution adopted by the consortium members on the basis of the grant agreement produced binding legal effects on the Commission. The General Court also failed to take into account the fact that (i) the debit notes were measures taken in the context of that agreement, from which they resulted, (ii) they produced legal effects under the ALL-GAS programme and that agreement, (iii) they resulted from an invalid termination of that agreement with regard to the appellant, (iv) they were based on information which had not been communicated to the appellant and (v) they were not based on any audit of the latter’s activities.

71      In the third place, the appellant claims that the debit notes were based on the powers which the Commission derives in particular from Article 37 of Regulation No 1906/2006. If the Commission had not actually been a party to the grant agreement, as it maintains, it would not have had the power to issue such debit notes, which nevertheless served as the basis for the decision at issue. The General Court, by failing to take into account those important legal issues relating to that agreement, Regulation No 1906/2006 and other regulations, seriously undermined and infringed the appellant’s rights, in particular the right to be heard, on account of the failure to comply with the obligation to state reasons, the failure to take into account important evidence submitted by the appellant, the failure to comply with a reasonable time limit and the breach of the principles of protection of legitimate expectations and good administration.

72      The Commission contends that those arguments are unfounded.

–       Findings of the Court

73      In the first place, as regards, the complaint based on the alleged lack of clarity and the allegedly insufficiently well-founded nature of the General Court’s reasoning set out in paragraphs 41, 43 and 44 of the judgment under appeal, it must be borne in mind that, according to settled case-law, the statement of the reasons on which a judgment of the General Court is based must clearly and unequivocally disclose the General Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 38 and the case-law cited).

74      The obligation of the General Court to state reasons does not, however, require it to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case, and the reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 29 September 2022, HIM v Commission, C‑500/21 P, EU:C:2022:741, paragraph 58 and the case-law cited). Thus, the requirement that the General Court give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument is not sufficiently clear and precise and is not adequately supported by evidence (order of 20 October 2022, Mendes de Almeida v Council, C‑576/21 P, EU:C:2022:826, paragraph 65 and the case-law cited).

75      In the present case, in paragraphs 38 to 41 of the judgment under appeal, the General Court considered, in the light of Articles 272 and 274 TFEU and the case-law of the Court of Justice arising from the judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562), that, where there was a contract between the appellant and an EU institution, an action for annulment under Article 263 TFEU could be brought before the EU judicature only where the contested measure aimed to produce binding legal effects falling outside of the contractual relationship between the parties and which involved the exercise of the prerogatives of a public authority conferred on the contracting institution acting in its capacity as an administrative authority.

76      In that regard, in paragraph 43 of the judgment under appeal, the General Court recalled that, according to the case-law of the Court of Justice, a debit note or a formal notice, the purpose of which was to recover a debt on the basis of a grant agreement, and which stated the amount of the debt or a due date and also the payment terms of the debt established, could not be equated to an enforcement order as such, even though they referred to enforcement pursuant to Article 299 TFEU as a possible option among others open to the Commission where the debtor failed to perform an obligation by the due date laid down. In that same paragraph, it further stated that that applied a fortiori to a pre-information letter such as those sent, in this case, by the Commission.

77      The General Court concluded from this, in paragraph 44 of the judgment under appeal, that, in this case, both the pre-information letters and the debit notes relating to the contested decision were measures forming part of the context of the grant agreement which linked the Commission to the appellant and whose purpose is the recovery of a debt which is based on the provisions of that agreement.

78      In those circumstances, it must be stated that the reasons set out in paragraphs 41, 43 and 44 of the judgment under appeal clearly and unequivocally disclose the General Court’s reasoning and make it possible to ascertain the elements on which its decision to reject as inadmissible the main head of claim of the action brought before it was based, in so far as that head of claim sought the annulment of the pre-information letters and debit notes relating to the decision at issue. Therefore, it cannot be alleged that the General Court failed to comply with the obligation to state reasons incumbent on it in that regard.

79      In the second place, in so far as the appellant complains that the General Court failed to respect its rights of defence since it did not take into account certain facts or arguments put forward by it, it should be borne in mind that the right to be heard does not mean that the court has to incorporate in full in its decision all the submissions put forward by each party. That right implies, on the contrary, that the court, after listening to those submissions and assessing the evidence, decides whether or not to grant the relief sought in the application and give reasons for its decision (judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 48 and the case-law cited).

80      In the present case, first, the appellant does not dispute that the General Court ruled on the form of order sought in the action brought before it in so far as it concerned the pre-information letters and debit notes relating to the decision at issue. Secondly, as apparent from paragraphs 75 to 79 of this judgment, the General Court provided sufficient legal reasons for its decision to reject as inadmissible the main head of claim of the action in so far as it sought the annulment of those measures.

81      Accordingly, the appellant cannot reasonably criticise the General Court for not providing, in the context of the examination of the admissibility of that head of claim, a statement responding specifically to its arguments set out in paragraph 70 of the present judgment, which necessarily became devoid of purpose as a result of the finding of inadmissibility which the General Court rightly reached.

82      In the third place, with regard to the argument set out in paragraph 71 of this judgment, first, in so far as the appellant once again relies on the breach of the obligation to state reasons and of its right to be heard, it is sufficient to note that the General Court, as has been found in paragraphs 73 to 81 of this judgment, provided sufficient legal reasons, in compliance with the appellant’s right to be heard, for its decision to reject as inadmissible the appellant’s claims seeking the annulment of the pre-information letters and debit notes relating to the decision at issue. Therefore, the appellant’s line of argument is, to that extent, unfounded.

83      Secondly, in so far as the appellant relies on a breach of the principle of compliance with a reasonable time limit, the principle of protection of legitimate expectations and the principle of good administration, it must be noted that those principles are invoked in an abstract manner, without setting out the manner in which the General Court allegedly infringed them. As previously recalled in paragraph 59 of this judgment, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and from Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned will be inadmissible. Therefore, those complaints are inadmissible, since those requirements have not been met.

84      It follows that the first ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.

 The second ground of appeal

–       Arguments of the parties

85      By its second ground of appeal, which refers to paragraphs 58 to 64 of the judgment under appeal, the appellant alleges that the General Court ‘ignored the rule of law applicable to the [Commission] and institutions of the European Union’ and its obligation to state reasons and to take into consideration all the evidence provided.

86      The appellant maintains that the General Court cannot, in that regard, merely rely on a simple reference to the reasons put forward by the Commission. It further states that it was not aware of the reasons for the termination of its participation in the grant agreement nor of the complaints made against it, which constitutes an infringement of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 296 TFEU and Article 37 of Regulation No 1906/2006. Furthermore, it argues that, if the General Court had carried out a correct analysis of the evidence submitted, it could not have simply stated that that complaint was directed not at the Commission but at the consortium coordinator. In addition, ‘the [reference] to Article 296 TFEU is not in compliance with the statements and requests provided to the General Court in view of and in relation to the legislation applicable to the … grant agreement’, namely Regulation No 1906/2006.

87      The General Court also failed to take into account the case‑law that the statement of reasons must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted the measures in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review.

88      The appellant further maintains that the case-law referred to by the General Court in paragraph 64 of the judgment under appeal aims, in particular to prevent legal uncertainty. It also follows from the case-law that, while it is true that the Commission is not obliged, in the statement of reasons for decisions adopted under Regulation No 1906/2006, to take a position on all the information and arguments relied on before it, including those which are plainly of secondary importance to the appraisal it is required to undertake, it is nonetheless required to set out the facts and the legal considerations having decisive importance in the context of the decision taken by it. Furthermore, the reasoning must be logical and must not disclose any internal contradictions. It was in the light of those principles that the complaints raised by the appellant should have been examined, especially since the consortium coordinator’s reports, which were allegedly forwarded to the Commission and played a major role in the decision taken by the latter, were not communicated to the appellant. By failing to take into account factual elements, reasons and applicable rules of law, and to assess their importance, the General Court failed to examine the appellant’s complaints or only examined them on a limited basis.

89      In particular, the complaint that the appellant’s subsidiary was a third party linked to it, which was not taken into account, did not relate only to the coordinator’s conduct, as found by the General Court, but also to that of the Commission. The Commission was a party to the grant agreement and, pursuant to Article 26(4) of Regulation No 1906/2006, was merely entitled to object to a change to that agreement. The General Court also failed to examine the complaint that that agreement did not contain a clause permitting the termination of a member’s participation in that agreement, although, under Article 26(1) of that regulation, a party to such an agreement may be excluded only if it contains a clause concerning exclusion. That complaint was allegedly expressly raised in paragraphs 72 to 74 of the application before the General Court.

90      Furthermore, the General Court failed to comply with the principle of proportionality in assessing whether the Commission had complied with the applicable legislation. The General Court did not adequately examine the decision at issue and failed to find that it was apparent from the facts and evidence submitted to it that the information provided by the consortium coordinator which led to the termination of the appellant’s participation in the grant agreement was limited and misleading, with the result that it could not be used as evidence. The appellant had thus clearly demonstrated that the decision at issue was vitiated by errors not only with regard to its substantive legality, but also to its reasoning.

91      The Commission maintains that that ground of appeal must be rejected as manifestly inadmissible and, in any event, as ineffective, if not unfounded.

–       Findings of the Court

92      In the first place, in so far as, by that second ground of appeal, the appellant considers that the General Court, first, made a mere reference to the reasons put forward by the Commission and incorrectly assessed the reasoning of the decision at issue, it should be noted that, in accordance with the settled case-law already referred to in paragraphs 73 and 74 of this judgment, the statement of reasons of a judgment of the General Court must clearly and unequivocally disclose the General Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review, but that this does not mean that it is obliged to respond in detail to every single argument advanced by the appellant.

93      In the present case, it follows from a general reading of paragraphs 58 to 64 of the judgment under appeal that the General Court provided sufficient legal reasons for its assessment that the Commission had given sufficient reasons for the decision at issue. Moreover, it should be stated that, in paragraph 60 of the judgment under appeal, the General Court did indeed recall, in essence, the case-law referred to in paragraph 87 of this judgment. Consequently, the line of argument set out in the paragraphs 85 to 87 of this judgment is unfounded in so far as it is based on an alleged breach by the General Court of its obligation to state reasons.

94      Secondly, as regards the arguments summarised in paragraph 88 of this judgment, it must be stated that, with the exception of the complaint based on the failure to communicate to the appellant the consortium coordinator’s reports, the appellant does not indicate which complaints it put forward before the General Court and which the latter failed to examine. Therefore, in accordance with the case-law cited in paragraphs 59 and 60 of this judgment, that part of the appellant’s line of argument must be rejected as inadmissible, except the complaint based on the failure to communicate the coordinator’s reports. With regard to the latter complaint, summarised in paragraph 52 of the judgment under appeal, it should be noted that the General Court rejected it in paragraph 63 of that judgment on the grounds that it was not relevant to answer the plea alleging a breach of the obligation to state reasons by the Commission. That ground of the judgment under appeal, even if it is not vitiated by an error of law, is not sufficient to justify the rejection of that complaint, since the General Court failed to examine whether the failure to communicate those reports to the appellant was such as to establish the infringement of another rule or principle of EU law, in particular that of good administration which, as is apparent from paragraph 52 of that judgment, was relied on by the appellant.

95      However, in accordance with settled case-law, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement cannot lead to the setting aside of that judgment, and a substitution of grounds must be made (judgment of 14 December 2023, Commission v Amazon.com and Others, C‑457/21 P, EU:C:2023:985, paragraph 51 and the case-law cited).

96      That is the case here. No rule or principle of EU law prohibited the Commission from basing its decision on reports which had not been communicated to the appellant. Admittedly, the right to good administration, enshrined in Article 41 of the Charter, includes in particular, under the second indent of paragraph 2 of that article, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. However, it does not appear from the judgment under appeal, and nor is it claimed by the appellant, that the latter requested such access and that that access was refused. In those circumstances, the appellant’s complaint alleging failure to communicate the coordinator’s reports could only be rejected.

97      Thirdly, as regards the appellant’s arguments summarised in paragraph 89 of the present judgment, it should be noted, first, that, as is apparent from paragraph 54 of the judgment under appeal, before the General Court, the appellant alleged that the Commission failed to state the reasons why the consortium coordinator had not added a subsidiary of the appellant as a third party linked to it. As the General Court, in essence and rightly, noted in paragraph 62 of that judgment, it was not for the Commission to set out, in the decision at issue, the reasons for a decision adopted not by it, but by the consortium coordinator, with the result that the appellant’s complaint was not relevant for the examination of the adequacy of the statement of reasons for the decision at issue. The fact, relied on by the appellant, that, under Article 26(4) of Regulation No 1906/2006, the Commission was entitled to object to a proposal to amend the composition of the consortium cannot lead to a different conclusion, in so far as the appellant’s complaint before the General Court did not concern the Commission’s opposition, or lack of opposition, to an amendment to the consortium’s composition.

98      Secondly, it is apparent from the file at first instance, submitted to the Court of Justice under Article 167(2) of the Rules of Procedure, that, contrary to what the appellant alleges, it had not raised, in its application before the General Court, a complaint that the grant agreement did not contain a clause allowing the termination of a consortium member’s participation. The General Court cannot therefore be criticised for failing to examine such a complaint. Furthermore, it is important to recall that it is apparent from paragraph 9 of the judgment under appeal, which is not contested by the appellant in its appeal, that it accepted the termination of its participation in the consortium.

99      Fourthly, as regards the appellant’s line of argument summarised in paragraph 90 of this judgment, it must be stated that the appellant does not specify what ‘information provided by the [consortium coordinator]’ was ‘limited and misleading’, nor what error of law the General Court made in assessing that information. The appellant also does not explain how the principle of proportionality, which it relies on, would be relevant to the assessment of the adequacy of the statement of the reasons for the decision at issue. Accordingly, that line of argument must be rejected as inadmissible, in accordance with the case-law recalled in paragraphs 59 and 60 of this judgment.

100    In the light of the foregoing considerations, the second ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.

 The third ground of appeal

–       Arguments of the parties

101    By its third ground of appeal, alleging a breach of the right to be heard, of the principle of equal treatment and the principle of the protection of legitimate expectations, the appellant maintains that, in paragraphs 74 to 76 of the judgment under appeal, by placing the burden of proof on it and ‘stating that [the appellant] should [have] put forward any argument not being correctly heard’, the General Court ‘ignore[d] the basis of this dispute and the general point that the [Commission] did not act according to and comply with its own agreement, legislation and treaties’.

102    Furthermore, the General Court failed to take into account the factual elements and the appellant’s statements, from which it follows that it had submitted its comments to the Commission after each debit note and each pre-information letter received and that it had produced evidence supporting the facts, but did not receive a motivated or substantiated response to its arguments from the latter. The General Court also failed to take into account Article 7 of Decision No 1982/2006, which expressly provides that the Commission is to carry out systematic and ongoing monitoring, nor the fact that the appellant’s requests had remained unanswered on that point.

103    The appellant also claims that the General Court failed to take into account or examine the fact that the Commission delegated its monitoring task to the consortium coordinator implementing the ALL-GAS project, in breach of the principles of transparency, equality and independence, and in disregard of Article 27 of Regulation No 1906/2006, whereas it was the Commission that was responsible for ensuring monitoring and appointing experts to assist it in carrying out its task. Since the consortium coordinator was also a party to that project and to the grant agreement, the information provided by it is likely to be subjective, incorrect and incomplete.

104    Furthermore, the appellant maintains that the General Court disregarded the principle of protection of legitimate expectations. The information relating to the integration of another of the appellant’s subsidiaries as a linked third party and to the granting of the amount entered in the budget which was communicated to it constituted assurances likely to give rise to justified expectations on its part since they were provided at a meeting held by the consortium members in which the Commission also participated.

105    In that regard, the General Court failed to take into consideration and examine Article 201(4) of Regulation 2018/1046, from which it follows that the amount entered in the budget of the ALL-GAS project in favour of the appellant could not be amended in the event that the Commission considered that the inclusion of the appellant’s subsidiary as a linked third party should have led to an amendment to the grant agreement. Such an amendment has no effect on the grant award decision. If that point had been taken into account, the amount of the budget awarded would have been higher than that determined by the Commission after the termination of the appellant’s participation in that agreement.

106    The appellant further submits that the General Court incorrectly considered, in paragraph 78 of the judgment under appeal, that the Scientific Advisory Board was an internal body set up by the consortium as part of its internal ‘quality plan’, which was not subject to any review by the Commission, so that the latter could not be criticised for any irregularity in its operation which would constitute an alleged breach of the principle of equal treatment. The Commission was a party to the grant agreement and the consortium was governed by Regulation No 1906/2006, Article 18 of which provides that participants are to ensure that the Commission is informed of any event which might affect the implementation of the indirect action or the interests of the European Union. In addition, the Scientific Advisory Board supported the consortium coordinator’s opinion implementing the ALL-GAS project regarding the quality of the appellant’s work, whereas that assessment, which is technical, falls within the competence of the Commission and its experts under that regulation. Consequently, contrary to what the General Court found in paragraph 78, it was not a problem internal to the consortium.

107    The appellant also disputes the finding made by the General Court in paragraphs 87 and 88 of the judgment under appeal that it was not in a situation comparable to that of the other consortium members on the ground that its participation in the grant agreement had been terminated. It should have previously examined whether that termination was actually based on legal grounds, which was not the case.

108    According to the appellant, since the General Court did not question the reality of the appellant’s participation in the ALL-GAS project, the works it carried out and the items it produced, it should have taken those facts into account, in accordance with the principle in dubio pro reo, particularly since the Commission did not provide any evidence from which it emerged that the appellant and the parties linked to it had not carried out the tasks and delivered the items provided for in the grant agreement.

109    Lastly, the appellant claims that the comments of the consortium coordinator implementing that project on the examiner’s report sent to the Commission in 2014 were not communicated to it until after it had been notified of the decision at issue, which is contrary to the adversarial principle and constitutes a breach of the rights of defence given that the Commission relied on that document to support its complaint and its decisions concerning the existence of an alleged breach committed by the appellant. Even assuming that the Commission could have relied on those comments from the coordinator, that institution and the General Court infringed its rights of defence and the principle of adversarial proceedings by failing to ‘verify compliance with the standards of proof’.

110    The Commission contends that the third ground of appeal is inadmissible and, in any event, unfounded.

–       Findings of the Court

111    First, it should be stated that the complaint set out in paragraph 101 of this judgment does not clearly identify an error of law which allegedly vitiates the judgment under appeal. Accordingly, that complaint is not sufficiently clear and precise to enable the Court to exercise its review of legality, with the result that it is inadmissible, in accordance with the case-law recalled in paragraphs 59 and 60 of this judgment.

112    Secondly, as regards the argument set out in paragraph 102 of this judgment, it is sufficient to note that it does not, moreover, identify any error of law which allegedly vitiates the judgment under appeal, so that the Court of Justice is also not in a position to exercise its review and that it must therefore be declared inadmissible, in accordance with the case-law referred to in paragraphs 59 and 60 of this judgment. Furthermore, in so far as, by that alleged error, the appellant alleges that the General Court failed to take into account the facts set out in paragraph 102, it is sufficient to note that that assertion is contradicted by the very content of paragraph 75 of the judgment under appeal. Furthermore, in so far as the appellant is, in fact, contesting the General Court’s assessment of those facts, that argument must be rejected as inadmissible, in accordance with the case-law already recalled in paragraph 54 of this judgment.

113    Thirdly, the complaint set out in paragraph 103 of this judgment must be rejected as inadmissible, in accordance with the case-law recalled in paragraphs 59 and 60 of this judgment. The appellant does not claim to have raised before the General Court the facts which it claims the latter failed to examine. Nor does it explain what the link would be between those facts and the parts of the judgment under appeal referred to by the third ground of appeal, which concern the pleas in law of the action at first instance based on the alleged breach of the right to be heard and the principle of equal treatment, as well as the principle that action must be taken within a reasonable time and the principle of equal treatment.

114    Fourthly, the same applies to the complaint set out in paragraphs 104 and 105 of this judgment, in so far as it does not indicate precisely the elements being challenged in the judgment under appeal or the error of law allegedly made by the General Court. In particular, as regards the arguments summarised in paragraph 105 of this judgment, the appellant does not claim to have raised them before the General Court, nor does it indicate in what context they should have been examined, so that it cannot be alleged that the General Court failed to take them into consideration.

115    Fifthly, the appellant’s arguments summarised in paragraph 106 of this judgment, assuming they are well founded, are not such as to call into question the consideration set out by the General Court in paragraph 78 of the judgment under appeal, that, in essence, the Scientific Advisory Board was not subject to any review by the Commission, so that any irregularity in its operation which would constitute an alleged breach of the principle of equal treatment, could not be attributed to the Commission or affect the legality of the decision at issue. Accordingly, that part of the appellant’s line of argument is ineffective.

116    Sixthly, contrary to what is alleged in the context of the complaint summarised in paragraph 107 of this judgment, the General Court was not required to analyse the legality of the termination of the appellant’s participation in the grant agreement before finding, in paragraph 88 of the judgment under appeal, that the appellant was not in a situation comparable to that of the other consortium members, particularly since, as has already been noted in paragraph 98 of this judgment, it is apparent from paragraph 9 of the judgment under appeal that the appellant had accepted the termination of its participation in the grant agreement.

117    Seventhly, as regards the complaint summarised in paragraph 108 of this judgment, it must also be rejected as inadmissible, in so far as the appellant fails to indicate, first, what error of law the General Court allegedly made and what the link is between the facts relied on and the principle in dubio pro reo, and, second, the pleas in law of the action examined by the General Court in paragraphs 74 to 78, 87 and 88 of the judgment under appeal, referred to in the third ground of appeal.

118    Eighthly, with regard to the complaint referred to in paragraph 109 of this judgment, it should be noted, first, that it is not apparent from the judgment under appeal, and the appellant does not claim to have invoked before the General Court, that the consortium coordinator’s comments, sent to the Commission in 2014, had only been communicated to the appellant after the notification of the decision at issue. Accordingly, by advancing that allegation for the first time before the Court of Justice, the appellant raises a new plea in law. Under Article 170(1) of the Rules of Procedure, the subject matter of the proceedings before the General Court may not be changed in the appeal. Thus, the jurisdiction of the Court of Justice in an appeal is limited to review of the findings of law on the pleas and arguments debated before the General Court. A party cannot, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 6 October 2021, Sigma Alimentos Exterior v Commission, C‑50/19 P, EU:C:2021:792, paragraph 38 and the case-law cited). Secondly, while the appellant complains that the General Court infringed its rights of defence and the principle of adversarial proceedings by relying on the abovementioned comments, it fails to indicate in which part of the judgment under appeal the General Court relied on those comments. It follows that the complaint summarised in paragraph 109 of this judgment must be rejected as inadmissible.

119    In the light of the foregoing considerations, the third ground of appeal must be rejected.

 The fourth ground of appeal

–       Arguments of the parties

120    By its fourth ground of appeal, alleging a breach of the principle that action must be taken within a reasonable time and of the principle of good administration, the appellant submits, first of all, that the General Court incorrectly considered, in paragraphs 85 and 86 of the judgment under appeal, that it had not indicated how a possible breach of the principle that action must be taken within a reasonable time would have prevented it from exercising its rights of defence and from putting forward its point of view in the context of the administrative procedure conducted by the Commission for the calculation of the eligible costs of the ALL-GAS project.

121    In that regard, according to the appellant, the General Court failed to take into account the fact that the period of time which elapsed between 2013 and the date when the decision at issue was adopted, a period during which the report of the consortium coordinator implementing that project was sent to the Commission, but not to the appellant, undermined the exercise of the latter’s rights of defence. If the Commission had adopted the decision at issue earlier or if it had carried out a full review more promptly, rather than a limited review, the appellant itself would have become aware much earlier of the inaccuracies contained in the report sent to the Commission by that consortium coordinator, which would have enabled it to respond to them and take them into consideration during the examination carried out by the Commission. Furthermore, the appellant claims that it could also have argued more effectively, substantially and precisely that a complete review of the calculation of all costs had to be performed.

122    Next, as regards the principle of good administration, the appellant, which refers to paragraphs 90 to 92 of the judgment under appeal, submits that the General Court examined only in a very limited manner the regulations and standards applicable to the Union budget, even though the Commission did not comply with either Article 41 of the Charter or the general principles set out in Article 188 of Regulation 2018/1046, in particular the principles of equal treatment, transparency, no-profit and non-retroactivity. It therefore incorrectly considered that the appellant’s argument relating to that principle of good administration was not relevant. In that regard, the General Court failed to take into account the fact that the Commission had acknowledged that it had not carried out a full audit.

123    Lastly, the appellant, which refers to paragraphs 108 to 110 of the judgment under appeal, argues that the General Court incorrectly considered that it had not demonstrated that the Commission had failed in its obligation to examine carefully and impartially all the relevant elements of the present case. The appellant submits that it had put forward arguments and reasons in that regard. Furthermore, the Commission had additional information which it did not communicate to the appellant, which the General Court did not take into account.

124    The Commission submits that the fourth ground of appeal should be rejected as inadmissible or, alternatively, as unfounded.

–       Findings of the Court

125    First of all, as regards the appellant’s complaint that the General Court failed to take into account the fact that the adoption of the decision at issue, several years after the appellant’s participation in the grant agreement was terminated, undermined the exercise of its rights of defence, it should be noted that, admittedly, in paragraph 86 of the judgment under appeal, the General Court considered that the appellant had not stated how a breach, if any, of the principle that action must be taken within a reasonable time, would have prevented it from exercising its rights of defence and from putting forward its point of view during the administrative procedure conducted by the Commission for the calculation of eligible costs of the ALL-GAS project. In that regard, however, it is important to recall that the Court of Justice has already held that the fact that a reasonable time is exceeded can constitute a ground for annulment of a Commission decision only where it has been proved that breach has adversely affected the rights of defence or if there is an indication that the excessive length of the proceedings before the Commission has affected the outcome of the dispute (see, in particular, judgment of 26 June 2019, Italy v Commission (Necessary verifications), C‑247/18 P, EU:C:2019:536, paragraph 85 and the case-law cited). Therefore, the reasoning given by the General Court in paragraph 86 of the judgment under appeal is not vitiated by the error of law relied on.

126    Furthermore, in so far as, by the arguments set out in paragraph 121 of this judgment, the appellant seeks to obtain from the Court of Justice a fresh assessment of the facts, without however alleging any distortion of those facts, they are inadmissible, in accordance with the case-law already referred to in paragraph 54 of this judgment.

127    Next, as regards the complaint that the General Court incorrectly considered, in paragraphs 90 to 92 of the judgment under appeal, that the appellant’s line of argument concerning the principle of good administration was not relevant, it is sufficient to note that, in those paragraphs, the General Court merely explained how the argument that the appellant relied on before it, based on the Commission’s monitoring obligation under Article 7 of Decision No 1982/2006, was irrelevant for the purposes of examining the first plea in law of the action for annulment, concerning a breach of the principles that action must be taken within a reasonable time and of equal treatment. Furthermore, the appellant does not explain in what way the General Court misunderstood the scope of Article 7 in those paragraphs. Furthermore, it is by the fifth plea in law of the action for annulment, examined by the General Court in paragraphs 108 to 111 of the judgment under appeal, that the appellant claimed a breach of the principle of good administration. In those circumstances, it must be stated that the appellant’s complaint does not reveal any error of law made by the General Court in the contested paragraphs of the judgment under appeal and must, consequently, be rejected as unfounded.

128    Lastly, by the complaint summarised in paragraph 123 of this judgment, the appellant contests, in essence, paragraph 110 of the judgment under appeal, in which the General Court noted that the appellant had not indicated for what specific reason the Commission had failed in its obligation to examine carefully and impartially all the elements of the individual case. Although the appellant stresses that it had put forward ‘arguments and reasons’ in that regard before the General Court, it has failed to indicate their content. As for the allegation that the Commission had additional information which it did not communicate to the appellant, apart from the fact that the latter does not specify in any way what the nature or purpose of that information might have been, it is not apparent from the judgment under appeal that a similar allegation had been put forward before the General Court. Accordingly, that part of the appellant’s line of argument constitutes, in fact, reliance on a new plea in law at the appeal stage, which is prohibited in accordance with the case-law cited in paragraph 118 of this judgment. It follows that the complaint summarised in paragraph 123 of this judgment must be rejected as inadmissible.

129    Consequently, the fourth ground of appeal must be rejected.

130    Since none of the grounds of appeal put forward in support of this appeal have been upheld, that appeal must be dismissed in its entirety, without there being any need to carry out the measures of inquiry applied for by the appellant.

 Costs

131    In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.

132    Under Article 138(1) of those rules, which applies to the appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

133    Since the Commission has requested that the appellant be ordered to pay the costs and the appellant has been unsuccessful, it must be ordered to pay, in addition to its own costs, those incurred by the Commission, including those relating to the interim proceedings.

On those grounds, the Court (Tenth Chamber) hereby:

1.      Dismisses the appeal;

2.      Orders LE to bear its own costs and to pay those incurred by the European Commission, including those relating to the interim proceedings.

Delivered in open court in Luxembourg on 14 November 2024.

*      Language of the case: English.

© European Union
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