T-82/15

ORDER OF THE GENERAL COURT (Second Chamber) 15February 2016(*) (Seventh framework programme of the European Community for research, technological development and demonstration activities (2007 to 2013) — Grant agreement for the Atraco project — Debit notes and decisions contained in letters — No need to adjudicate in part — Contractual nature of the dispute — Partial inadmissibility) In Case T‑82/15, InAccess Networks Integrated Systems — Applications Services for Telecommunication and Related Equipment Commercial and Industrial Co. SA, established in Maroussi (Greece), represented by J. Grayston, Solicitor, P. Gjørtler and G. Pandey, lawyers, applicant, v European Commission, represented by L. Di Paolo and J. Estrada de Solà, acting as Agents, defendant, APPLICATION for annulment of the Commission decision contained in the letter of 11 December 2014 by which the Commission confirmed its refusal to finance costs invoked by the applicant, of the Commission decision contained in debit note No 3241211514 of 23 October 2012, and of the Commission decision contained in the letter of 7 December 2012 requesting the applicant to return the funds paid and to pay liquidated damages of EUR 12 814.10, THE GENERAL COURT (Second Chamber), composed of M.E. Martins Ribeiro, President, S. Gervasoni (Rapporteur) and L. Madise, Judges, Registrar: E. Coulon, makes the following Order  Background to the dispute 1        On 19 January 2007 the Commission of the European Communities, representing the European Community, and the University of Ulm, acting as coordinator of a consortium, signed Grant Agreement No 216837 for the Adaptive and Trusted Ambient Ecologies (Atraco) project (‘the grant agreement’) under the Seventh framework programme for research, technological development and demonstration activities (2007 to 2013). The duration of that project was 36 months, running from 1 January 2008 until 31 December 2010. 2        Article 5 of the grant agreement fixed the maximum amount of the Community’s financial contribution at EUR 1 949 992. Article 6 of the agreement provided for prefinancing of EUR 1 039 996, to be paid by the Commission to the beneficiaries via the coordinator. 3        The applicant, InAccess Networks Integrated Systems — Applications Services for Telecommunication and Related Equipment Commercial and Industrial Co. SA, is one of the four beneficiaries under the grant agreement. Pursuant to that agreement, it received, over various periods, the sum of EUR 172 775.02 from the Commission. 4        From 8 March to 29 April 2011, an audit firm, instructed by the Commission, carried out a financial audit of the Atraco project (‘the audit’). The draft audit report was sent to the applicant on 29 November 2011. The applicant submitted its written observations to that audit firm on 3 January 2012. On 23 January 2012 that audit firm submitted to the Commission a final report concluding that there were ineligible costs totalling EUR 166 469. 5        By letter of 15 March 2012, the Commission informed the applicant that the findings of the audit showed that costs had been overestimated and that there were systematic errors in the calculation of personnel costs and of indirect costs, and it informed the applicant that a gross adjustment in respect of eligible costs led to a deduction of EUR 166 469. The Commission also informed the applicant that its services could carry out the necessary adjustments and calculate the liquidated damages in accordance with Article II.24 of the general conditions of the grant agreement. 6        By letters of 12 and 27 June 2012, the applicant pointed out to the Commission that it had not been informed of the rules relating to the adversarial procedure that had to be applied and contested the findings of the audit. 7        By letter of 29 June 2012 the Commission replied to the applicant that the importance of providing all evidence at the stage of the adversarial procedure had perhaps not been explained completely clearly but stated that it would re-examine the findings of the audit in the light of the evidence provided by the applicant. In the same letter, the Commission invited the applicant to provide other evidence substantiating the time spent on the project and a description of the facilities placed at the disposal of in-house consultants who were teleworking. 8        The applicant replied to the Commission by letter of 14 August 2012 in which it again took issue with the findings of the audit. 9        By letter of 24 August 2012, the Commission confirmed to the applicant that, as no new evidence had been provided in the letter of 14 August 2012, it intended to maintain the conclusions of the audit. 10      A debit note was, consequently, sent to the applicant on 23 October 2012, requesting payment of the sum of EUR 95 507.02 by 6 December 2012 and specifying that, if the payment was not made by that date, the Commission reserved the right to enforce payment. 11      By letter of 4 December 2012, the applicant asked the Commission for a meeting to be organised to enable it to submit other evidence. 12      By letter of 7 December 2012 the Commission informed the applicant that payment of liquidated damages would be sought from it and that a debit note in the amount of EUR 12 814.10, corresponding to those damages, would be issued against it. 13      By letter of 22 January 2013, the Commission informed the applicant that it agreed to organise a meeting in order to clarify certain issues relating to the audit. 14      At that meeting between the Commission and the applicant, which took place on 4 April 2013, the applicant produced additional documents concerning the time spent on the project, and the extent and conditions of the teleworking. Those documents were analysed by the Commission and the auditors of the audit firm. 15      At the conclusion of that assessment, the Commission informed the applicant, by letter of 11 December 2014, that the documents produced did not allow for revision of the findings or the adjustments proposed in the audit report or, in particular, for the hours of work claimed to be substantiated on the basis of the time sheets provided, and that the applicant had not complied with its obligations under Articles II.22 and II.22.4 of the general conditions of the grant agreement. 16      By letter of 11 February 2015, the applicant contested the findings of the audit and requested the Commission to suspend or annul the decision contained in the letter of 11 December 2014.  Procedure and forms of order sought 17      The applicant brought the present action by application lodged with the Registry of the General Court on 20 February 2015. 18      By separate document lodged on 8 June 2015, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991. 19      In its observations on that objection of inadmissibility, submitted on 27 July 2015, the applicant informed the General Court that a new debit note dated 15 June 2015, which replaced the debit note of 23 October 2012, had been issued by the Commission and that the Commission had withdrawn its request for the payment of liquidated damages referred to in the letter of 7 December 2012. 20      By separate document lodged with the Court Registry on 24 August 2015, the applicant, pursuant to Article 86 of the Rules of Procedure of the General Court, modified the application in order to take account of the debit note of 15 June 2015. 21      The Commission submitted observations on the statement of modification on 10 November 2015. 22      In its application, the applicant claims that the Court should: –        annul the Commission’s decision contained in the letter of 11 December 2014; –        annul the debit note of 23 October 2012; –        annul the Commission’s decision contained in the letter of 7 December 2012; –        order the Commission to pay the costs. 23      In its observations on the objection of inadmissibility and in the statement of modification, the applicant claims that the Court should: –        declare the application admissible in so far as it concerns the Commission’s decision contained in the letter of 11 December 2014; –        reclassify the present action as an action brought on the basis of Article 272 TFEU to the extent that the Court considers this necessary; –        declare that there is no longer any need to adjudicate on the application to the extent that it is brought against the debit note of 23 October 2012 and the Commission’s decision contained in the letter of 7 December 2012; –        annul the debit note of 15 June 2015 and consider that the grounds challenging the debit note of 23 October 2012 are brought against the debit note of 15 June 2015 in so far as the Court considers that the latter is a reviewable act; –        order the Commission to pay the costs. 24      The Commission contends that the Court should: –        dismiss the action as inadmissible; –        order the applicant to pay the costs. 25      In its observations on the statement of modification, the Commission submits that the debit note of 15 June 2015 was issued in the name and on behalf of the guarantee fund of the participants in the research programme in application of Articles II.20 and II.21 of the general conditions of the grant agreement, on the ground that the original debit note had not been paid, that no offsetting was possible, and that under those contractual provisions all participants in a research project contribute financially to the fund’s purpose, which is to mitigate the risk associated with the non-recovery of the sums owed to the Commission by the beneficiaries of the grant agreements under the Seventh framework programme for research, technological development and demonstration activities (2007 to 2013). 26      The Commission clarifies that, in the event that a debit note is not paid, the fund will pay the debt of the defaulting beneficiary to the Commission and that, under Article II.21(2) of the general conditions of the grant agreement, in such a case, the defaulting beneficiary will reimburse to the fund the amount that the fund paid to the Commission. 27      The Commission points out that the new debit note refers to the same amount in capital and interest as the original debit note, that the intervention of the fund does not extinguish the beneficiary’s initial obligation, and that the debt is transferred from the Community to the fund. The Commission emphasises that the new debit note was issued in order to inform the beneficiary of the change of creditor and to provide the beneficiary with details of the new bank account into which the debt could be paid, and that the new debit note has no impact on the debt itself or on the payment of interest. 28      The Commission has no objection to considering that the pleas and arguments raised in the application in respect of the debit note of 23 October 2012 are now directed against the debit note of 15 June 2015, so long as the arguments advanced by the Commission in its objection of inadmissibility of 8 June 2015 are also modified mutatis mutandis.  Law  The subject matter of the application 29      Under Article 131 of the Rules of Procedure, if the General Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order. 30      The applicant submits, without the matter being contested, that a new debit note dated 15 June 2015, replacing the debit note of 23 October 2012, was issued by the Commission and that the Commission withdrew its request to the applicant for payment of the liquidated damages referred to in the letter of 7 December 2012. 31      In the present case, it must be held, first, that the debit note of 23 October 2012 was replaced by the debit note of 15 June 2015 for the same amount and, second, that the Commission withdrew its request to the applicant for payment of the liquidated damages referred to in the letter of 7 December 2012. 32      That being so, the present application has become devoid of purpose in so far as it is brought against the debit note of 23 October 2012 and the payment of the liquidated damages contained in the letter of 7 December 2012 and, therefore, there is no longer any need to adjudicate to that extent, as the applicant, moreover, requests.  Admissibility 33      Under Article 126 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. 34      In the present case, the Court considers that it has sufficient information from the documents before it and has decided, pursuant to Article 126 of the Rules of Procedure, to give a decision on the action without taking further steps in the proceedings. 35      The Commission argues that the present application is inadmissible on the grounds, first, that contractual acts are not decisions within the meaning of Article 288 TFEU, the annulment of which may be applied for under Article 263 TFEU and, second, that the letter of 11 December 2014 confirming the findings of the audit report and the debit note of 15 June 2015 are not challengeable acts for the purposes of Article 263 TFEU.  36      First of all, it must be pointed out that it is for the applicant to choose the legal basis of its action and not for the Courts of the European Union themselves to choose the most appropriate legal basis (judgment of 15 March 2005 in Spain v Eurojust, C‑160/03, ECR, EU:C:2005:168, paragraph 35, and order of 12 October 2011 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, T‑353/10, ECR, EU:T:2011:589, paragraph 18). 37      In the present case, the applicant expressly brought its claim for annulment on the basis of Article 263 TFEU. First, the applicant requests explicitly the annulment of the Commission decision contained in the letter of 11 December 2014 and of the debit note of 15 June 2015. Second, Article 263 TFEU is referred to on several occasions both in the application commencing the action and in the applicant’s observations on the objection of inadmissibility raised by the Commission. 38      The applicant added, however, in its observations on the objection of inadmissibility, that, if the Court were to take the view that the action for annulment was inadmissible, the present action could be reclassified as an action under Article 272 TFEU.  39      In those circumstances, it is necessary to consider, first, whether the present action is admissible under Article 263 TFEU before going on to examine, if necessary, in the event that the action for annulment is inadmissible, whether that action may nonetheless be reclassified as an action brought under Article 272 TFEU.  Admissibility of the action under Article 263 TFEU 40      According to settled case-law, measures adopted by the institutions in a purely contractual context from which they are inseparable are, by their very nature, not among the measures the annulment of which may be sought pursuant to Article 263 TFEU (see judgment of 17 June 2010 in CEVA v Commission, T‑428/07 and T‑455/07, ECR, EU:T:2010:240, paragraph 52 and the case-law cited). 41      It is therefore necessary to examine whether the decisions allegedly contained in the contested measures are among the measures which may be annulled by the European Union Courts under Article 263 TFEU, or whether, on the contrary, they are contractual in nature (see, to that effect, orders of 10 May 2004 in Musée Grévin v Commission, T‑314/03 and T‑378/03, ECR, EU:T:2004:139, paragraph 66; 26 February 2007 Evropaïki Dynamiki v Commission, T‑205/05, EU:T:2007:59, paragraph 42; and 10 April 2008 Imelios v Commission, T‑97/07, EU:T:2008:105, paragraph 23). 42      First, with regard to the Commission’s letter of 11 December 2014, it must be held that, by that letter, the Commission informed the applicant that the additional documents produced did not allow the Commission to revise the findings and adjustments proposed in the audit report and, in particular, to substantiate the hours of work claimed as stated in the time sheets, and that the applicant had not, consequently, complied with its obligations under Article II.22.4 of the general conditions of the grant agreement. 43      In the first place, it must be observed that the Commission’s letter of 11 December 2014 was written in the context of a contract agreed between the Community and the applicant, from which it is inseparable. By that letter, the Commission stated that it was maintaining its position and confirming the adjustments proposed in the audit report, which followed the financial audit carried out by the audit firm instructed by the Commission to verify whether the costs incurred by the applicant in the performance of that contract were eligible. 44      While the applicant submits that the Commission has taken a decision in the exercise of its capacity as an administrative authority and has not acted as a party to a contract, it must be observed that there is nothing in the Commission’s letter of 11 December 2014 that could lead to the conclusion that the Commission made use, in the present case, of its prerogatives as a public authority. The Commission, in essence, merely informed the applicant that it was confirming the conclusions and adjustments of the audit report and that the additional documents provided by the applicant did not allow it to revise those conclusions. 45      In the second place and, in any event, contrary to the applicant’s assertions, the Commission’s letter of 11 December 2014 is not a definitive act by that institution, but a preparatory act. By that letter, the Commission merely informed the applicant of the outcome of the reassessment that it had carried out and indicated to the applicant what would be the further steps in the process to give effect to the results of the audit. 46      It follows that the Commission’s letter of 11 December 2014, which is inseparable from the contract concluded between the Community and the applicant and is not a reviewable act, cannot be the subject of an action for annulment under Article 263 TFEU. 47      It follows that the application for annulment, in so far as it is brought against the Commission decision contained in the letter of 11 December 2014, is manifestly inadmissible. 48      Second, with regard to the debit note of 15 June 2015, it must be borne in mind that a debit note comes within the scope of the contract in so far as its purpose is the recovery of a debt grounded on the provisions of that contract, where it must be understood as a formal demand for payment setting out the maturity date and the payment terms and cannot be equated to an enforcement order, even though it refers to enforcement pursuant to Article 299 TFEU as a possible option, among others, open to the Commission should the debtor fail to pay the debt by the deadline set (see, to that effect, judgment of 9 September 2015 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, ECR, EU:C:2015:562, paragraph 23). 49      In the present case, it must be held that the debit note of 15 June 2015 comes within the scope of the contract, from which it is inseparable. By that debit note, the Commission pursues repayment of the funding provided to the applicant under the grant agreement, on the ground of ineligibility of certain costs incurred by the applicant inasmuch as the applicant did not substantiate the hours of work claimed on the basis of time sheets and, consequently, did not comply with its obligations under Article II.22.4 of the general conditions of the grant agreement. 50      It follows that the debit note of 15 June 2015 is not a reviewable act and cannot therefore be the subject of an action for annulment under Article 263 TFEU. The action for annulment, in so far as it is brought against that debit note, is therefore manifestly inadmissible.  Reclassification of the present action as an action under Article 272 TFEU 51      The applicant contends that the present action may be reclassified as an action brought under Article 272 TFEU and that, while the applicant considered that it was appropriate to bring its action under Article 263 TFEU in order to avoid being challenged later on the basis of the two-month period laid down by that article, that means of proceeding cannot be interpreted as a wish not to base its action on Article 272 TFEU. 52      In the first place, as regards the possibility of reclassifying the present action as an action brought under Article 272 TFEU, it must be recalled that, according to settled case-law, when an action for annulment or an action for damages is brought before the General Court although the dispute is, in fact, contractual in nature, the Court reclassifies the action if the conditions for such reclassification are met (judgment of 19 September 2001 in Lecureur v Commission, T‑26/00, ECR, EU:T:2001:222, paragraph 38; order in Musée Grévin v Commission, cited in paragraph 41 above, EU:T:2004:139, paragraph 88; and judgment in CEVA v Commission, cited in paragraph 40 above, EU:T:2010:240, paragraph 57). 53      On the other hand, where the dispute is contractual in nature, the Court considers itself unable to reclassify an action for annulment either where the applicant’s express intention not to base its application on Article 272 TFEU precludes such a reclassification or where the action is not based on any plea alleging infringement of the rules governing the contractual relationship in question, whether they be contractual clauses or provisions of the national law designated in the contract (see judgment in CEVA v Commission, cited in paragraph 40 above, EU:T:2010:240, paragraph 59 and the case-law cited). 54      It follows that the reclassification of the action is possible as long as the express intention of the applicant does not preclude it and at least one ground alleging infringement of the rules governing the contractual relationship in question is relied on in the application, in accordance with Article 44(1)(c) of the Rules of Procedure of 2 May 1991. Those two criteria are cumulative. 55      In the present case, in its observations on the objection of inadmissibility raised by the Commission, the applicant expressly requests the reclassification of the present action as an action brought under Article 272 TFEU. The first condition is therefore satisfied. 56      By contrast, it is clear from the applicant’s written submissions that the pleas which it raises in support of the action, alleging infringement of the right to be heard, infringement of the principle of legitimate expectations, and breaches of the duty to state reasons and of the obligation not to make manifest errors of assessment, are matters relevant to the review of the legality of acts under Article 263 TFEU and not allegations of infringement of the rules governing the grant agreement. 57      By the first plea, the applicant alleges that the Commission’s decisions following the audit procedure, in particular the decision contained in the letter of 11 December 2014, were taken in breach of the right, guaranteed by Article 41 of the Charter of Fundamental Rights of the European Union, to be heard before an adverse decision is adopted. By such an argument, which does not refer to any provision in the grant agreement alleged to have been breached by the Commission, the applicant relies on an allegation that is appropriate in proceedings for the annulment of adverse acts under Article 263 TFEU.  58      As regards the second plea, alleging infringement of the principle of the protection of legitimate expectations, it should be borne in mind that, according to settled case-law, the right to rely on the protection of legitimate expectations against the European Union administration extends to any individual who is in a situation in which it is clear that, by giving him precise assurances, the administration has led him to entertain legitimate expectations. Such assurances, in whatever form they are given, are precise, unconditional and consistent information from authorised and reliable sources. However, a person may not plead a breach of that principle unless he has been given precise assurances by the administration (see judgment of 19 March 2003 in Innova Privat-Akademie v Commission, T‑273/01, ECR, EU:T:2003:78, paragraph 26). 59      In the present case, the applicant submits that, in the letters of 29 June 2012 and 22 January 2013, the Commission stated to the applicant that it would re-examine the findings of the audit in the light of the matters that the applicant had raised and that those statements constituted unconditional and consistent assurances that the Commission would adopt, in the light of the additional documents produced by the applicant, a new decision concerning the eligibility of the expenditure invoked. It is clear from such an argument that the legitimate expectation on which the applicant relies does not originate in the clauses of the grant agreement or in a favourable interpretation of those clauses, by which the Commission is alleged to have expressly accepted the eligibility of the expenditure in dispute, but rather in a unilateral undertaking of a purely procedural nature, given by the Commission in the abovementioned letters, that it would re-examine the file in the light of the additional documents provided by the applicant. That plea is not therefore derived, either directly or indirectly, from any infringement of those clauses. 60      As regards the third plea, alleging the inadequacy of the reasons given in the letter of 11 December 2014, it must be observed that the obligation to state reasons, which is imposed on the Commission by virtue of the second paragraph of Article 296 TFEU, applies only to unilateral means of action by the Commission and does not apply to the Commission by virtue of the grant agreement (see, to that effect, the judgment of 24 October 2014 in Technische Universität Dresden v Commission, T‑29/11, ECR, EU:T:2014:912, paragraph 120). That plea, appropriate in annulment proceedings, is not therefore based on any breach by the Commission of the grant agreement. 61      As regards, last, the plea alleging a manifest error of assessment, it must be held that the applicant does not specify which provisions of the contract at issue have, in the present case, allegedly been infringed by the Commission, and merely contends that, because of the breach of the right to be heard, the infringement of the principle of legitimate expectations, and the inadequacy of the reasoning, it is difficult not to conclude that the contested acts, in particular the Commission’s decision contained in the letter of 11 December 2014, are vitiated by manifest errors of assessment. Furthermore, on the assumption that the applicant intended, by that plea, to raise a question as to whether the debt was well founded, it did not rely on a breach of any rule in the grant agreement (judgment of 6 October 2015 in Technion and Technion Research & Development Foundation v Commission, T‑216/12, ECR, EU:T:2015:746, paragraph 54). Consequently, that plea raises matters appropriate for contesting adverse acts in annulment proceedings. 62      It follows that the second condition for the reclassification of an action is not satisfied. The present action cannot therefore be reclassified as an action brought under Article 272 TFEU.  63      It follows from all of the foregoing that there is no longer any need to adjudicate on the claims directed against the letter of 7 October 2012 and the debit note of 23 October 2012 and that, as for the remainder, the present action must be dismissed as being manifestly inadmissible.  Costs 64      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Second Chamber) hereby orders: 1.      There is no longer any need to adjudicate on the claims directed against the Commission decision contained in the letter of 7 October 2012 and the debit note of 23 October 2012. 2.      The action is, for the remainder, dismissed as being manifestly inadmissible. 3.      InAccess Networks Integrated Systems — Applications Services for Telecommunication and Related Equipment Commercial and Industrial Co. SA shall pay the costs. Luxembourg, 15 February 2016. E. Coulon        M.E. Martins Ribeiro Registrar        President * Language of the case: English.