T-570/24

ORDER OF THE GENERAL COURT (Sixth Chamber) 25 September 2025 (*) ( Action for annulment – General regime of conditionality for the protection of the Union budget – Measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary – Prohibition on entering into legal commitments with a public interest trust established on the basis of Hungarian Act No IX of 2021 or with an entity maintained by such a public interest trust – Decision not to enter into a new legal commitment with the applicant – Identification of the defendant – Partial inadmissibility ) In Case T‑570/24, Modul University Vienna GmbH, established in Vienna (Austria), represented by V. Łuszcz and G. Illés, lawyers, applicant, v European Commission, represented by J. Baquero Cruz, D. Drambozova and C. Ehrbar, acting as Agents, and European Health and Digital Executive Agency (HaDEA), represented by Y. Arevalo Torres, A. Cecere and S. Filis, acting as Agents, and by A. Duron, defendants, THE GENERAL COURT (Sixth Chamber), composed, at the time of the deliberations, of M.J. Costeira, President, U. Öberg (Rapporteur) and P. Zilgalvis, Judges, Registrar: V. Di Bucci, makes the following Order 1        By its action under Article 263 TFEU, the applicant, Modul University Vienna GmbH, seeks, in essence, annulment of the decision contained in the email of the European Health and Digital Executive Agency (HaDEA) of 23 August 2024 not to enter into a new legal commitment with the applicant in accordance with Article 2(2) of Council Implementing Decision (EU) 2022/2506 of 15 December 2022 on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary (OJ 2022 L 325, p. 94).  Background to the dispute 2        The applicant is a university based in Vienna (Austria), founded in 2007, which succeeded Tourism College MODUL, founded in 1908. It is a private law entity whose status and activities are governed by Austrian law. 3        On 15 December 2022, the Council of the European Union adopted Implementing Decision 2022/2506, by which, inter alia, it decided, in Article 2(2) thereof, that ‘where the Commission implements the Union budget in direct or indirect management pursuant to … Article 62(1) points (a) and (c), of Regulation (EU, Euratom) 2018/1046, no legal commitments shall be entered into with any public interest trust established on the basis of the Hungarian Act IX of 2021 or any entity maintained by such a public interest trust.’ 4        On 12 May 2023, Univinvest Kft., a company incorporated under Hungarian law, owned 90% of the applicant’s shares. The remaining 10% of the shares were owned by the Wirtschaftskammer Wien (Vienna Chamber of Commerce, Austria). Univinvest Kft. was, in turn, 100% owned by the entity MCC Liber Invest Kft., subject to Hungarian law and itself 100% owned by a foundation, namely Mathias Corvinus Collegium (MCC) Alapítvány. The latter’s activities are governed by the provisions of a közfeladatot ellátó közérdekű vagyonkezelő alapítványokról szóló 2021. évi IX. Törvény (Hungarian Act No IX of 2021 on public interest trusts with a public service function). 5        On 14 September 2023, HaDEA published, on the European Union Funding and Tenders Portal, the call for proposals entitled ‘Cloud, Data and Artificial Intelligence’ (DIGITAL-2023-CLOUD-DATA-AI-05), in the context of the work programme for a Digital Europe 2023-2024. 6        On 20 January 2024, a consortium of 41 participants, including the applicant, submitted proposal for funding 101173388, entitled ‘Deployment of a Trusted and Secure Common European Tourism Data Space’, bearing the acronym ‘DEPLOYTOUR’, on the subject of the call for proposals ‘Data Space for tourism’ (DIGITAL-2023-CLOUD-DATA-AI-05-DATATOURISM). 7        On 23 April 2024, the consortium received a grant agreement preparation invitation. 8        By email of 5 July 2024, HaDEA requested that the applicant provide various documents concerning its ownership and corporate structure in order to assess whether it was subject to restrictions laid down in Implementing Decision 2022/2506. 9        By email of 12 July 2024, the applicant provided HaDEA with the documents requested. 10      By email of 29 July 2024, HaDEA sent the applicant its preliminary assessment, carried out on the basis of the documents provided. In its view, the applicant came within the scope of the prohibition laid down in Article 2(2) of Implementing Decision 2022/2506. In that email, it also informed the applicant of the possibility of submitting additional information to it before 9 August 2024. 11      By email of 9 August 2024, the applicant informed HaDEA that it was challenging the preliminary assessment at issue. 12      By email of 23 August 2024, HaDEA sent the applicant its final assessment. According to HaDEA, given that the applicant had to be regarded as being covered by Implementing Decision 2022/2506, it could not enter into a new legal commitment with the applicant. In that email, HaDEA also informed the applicant that it would contact the coordinator of the consortium in question, for the purpose of inviting it to consider possible acceptable changes to the consortium composition. 13      On 3 October 2024, the ‘DEPLOYTOUR’ grant agreement was signed with the consortium in question, the composition of which was changed in such a way that the applicant no longer participates in it.  Forms of order sought 14      The applicant claims that the Court should: –        annul the decision of HaDEA and the European Commission, contained in the email of 23 August 2024 to its Research and Knowledge Transfer Support Manager, to apply to it Article 2(2) of Implementing Decision 2022/2506; –        in the alternative, annul the decision of HaDEA and the Commission, contained in that email, to apply to it Article 2(2) of that implementing decision as regards the DEPLOYTOUR project; –        order HaDEA, the Commission and any intervener supporting them to pay the costs. 15      In the pleas of inadmissibility, HaDEA and the Commission contend that the Court should: –        dismiss the action as inadmissible; –        order the applicant to pay the costs. 16      In its observations on the pleas of inadmissibility, the applicant claims that the Court should reject the pleas of inadmissibility raised by HaDEA and the Commission.  Law 17      Pursuant to Article 130(1) of the Rules of Procedure of the General Court, the Court may, if the defendant so requests, rule on the question of inadmissibility without going to the substance of the case. Under Article 130(7) of those rules, the Court is to decide on the application as soon as possible or, where special circumstances so justify, reserve its decision until it rules on the substance of the case. 18      The Commission contends that the action is inadmissible in particular in so far as it is directed against it. The Commission claims that it cannot be a defendant in the present case, since it is neither the author nor the joint author of the email of 23 August 2024. 19      The applicant submits that the decision contained in the email of 23 August 2024 must be attributed also to the Commission, in view of its wording and legal effects. In its view, the Commission is therefore also a defendant in the present action. 20      In that regard, it must be borne in mind that actions for annulment under Article 263 TFEU must be brought against the institution which adopted the contested measure and such actions are inadmissible in so far as they are directed against another institution (judgment of 11 September 2003, Austria v Council, C‑445/00, EU:C:2003:445, paragraph 32). 21      In the present case, HaDEA is the author of the email of 23 August 2024 and the conclusion of that email is that HaDEA cannot enter into a new legal commitment with the applicant. 22      HaDEA was established by Commission Implementing Decision (EU) 2021/173 of 12 February 2021 establishing the European Climate, Infrastructure and Environment Executive Agency, the European Health and Digital Executive Agency, the European Research Executive Agency, the European Innovation Council and SMEs Executive Agency, the European Research Council Executive Agency, and the European Education and Culture Executive Agency and repealing Implementing Decisions 2013/801/EU, 2013/771/EU, 2013/778/EU, 2013/779/EU, 2013/776/EU and 2013/770/EU (OJ 2021 L 50, p. 9). 23      The status of HaDEA is governed by Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1). Under Article 4(2) of that regulation, ‘an executive agency shall have legal personality [and in] each of the Member States, it shall enjoy the most extensive legal capacity accorded to legal persons under national law[; i]t may, in particular, acquire or dispose of movable and immovable property and be a party to legal proceedings’. 24      It follows that HaDEA is a Union body with legal personality, responsible for the management of certain strands of Community programmes in the health and digital fields. 25      Furthermore, HaDEA has power as regards admissibility and eligibility checks, delegated to it in accordance with Annex I to Commission Decision C(2021) 948 final of 12 February 2021 delegating powers to the European Health and Digital Executive Agency with a view to the performance of tasks linked to the implementation of Union programmes in the field of EU4Health, Single Market, Research and Innovation, Digital Europe, Connecting Europe Facility – Digital, comprising, in particular, implementation of appropriations entered in the general budget of the Union. HaDEA’s decisions on admissibility and eligibility checks are not subject to prior approval by the Commission. 26      Consequently, it must be concluded that the decision contained in the email of 23 August 2024 was taken by HaDEA under its own powers and is not imputable to the Commission. 27      However, in certain cases, the Court has held that measures adopted pursuant to delegated powers were ascribable to the delegating institution, to which it fell to defend the measure in question. That is, in particular, the case when the author of the measure exercises a merely advisory competence or the measure of which annulment is sought was conditional upon the prior agreement of the delegating institution (judgment of 21 October 2010, Agapiou Joséphidès v Commission and EACEA, T‑439/08, not published, EU:T:2010:442, paragraph 34). 28      In the present case, it is true that the email of 23 August states that HaDEA completed the analysis of the arguments put forward in the applicant’s email of 9 August 2024 in collaboration with the Commission’s services. However, as the Commission has rightly pointed out, this merely indicates that HaDEA consulted the Commission in the course of that analysis. Such a consultation does not, in itself, attribute also to the Commission the decision contained in that email. 29      As regards the applicant’s argument that the framework for the assessment carried out by HaDEA was determined by the FAQ 22172, the Court finds that the mere fact that HaDEA included a document drawn up by the Commission in its assessment does not mean that the decision contained in the email of 23 August 2024 can be attributed also to the Commission. 30      Since it is not possible to attribute to the Commission the decision contained in the email of 23 August 2024, the present application for annulment must therefore be declared inadmissible in so far as it is directed against the Commission.  Costs 31      Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order does not close the proceedings in so far as they are between the applicant and HaDEA, the costs in that regard must be reserved. 32      On the other hand, it follows from the foregoing that the present order closes the proceedings in so far as they are between the applicant and the Commission. Under Article 134(1) 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. To that extent, the applicant must therefore be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby orders: 1.      The action is dismissed as inadmissible in so far as it is directed against the European Commission. 2.      Modul University Vienna GmbH shall bear its own costs and pay the costs incurred by the Commission in the proceedings relating to the plea of inadmissibility raised by the Commission. Luxembourg, 25 September 2025. V. Di Bucci   M.J. Costeira Registrar   President *Language of the case: English.