CELEX: 62011TJ0116
Arbitration clause
Sixth framework programme for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006)
Dicoems and Cocoon contracts
Non-compliance with the contractual requirements of part of the expenditure declared
Termination of the contracts
Repayment of part of the sums paid
Damages
Counterclaim
Non-contractual liability
Undue enrichment
Action for annulment
Act not amenable to an action
Act forming part of a purely contractual framework from which it is inseparable
Debit note
Inadmissibility

Legal context
1.
Contractual framework
Article 166(1) EC provides for the adoption of a multiannual framework programme covering all European activities in the areas of research and technological development.
In the context of the sixth framework programme, adopted by Decision No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 concerning the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) (
OJ 2002 L 232, p. 1
), Contract No 507126 on the Cocoon project (‘the Cocoon contract’) and Contract No 507760 on the Dicoems project (‘the Dicoems contract’) were concluded on 7 and 19 December 2003 respectively, by the Commission of the European Communities, on the one hand, and the coordinators of and participants in the projects, including the applicant, the European Medical Association (EMA), on the other hand.
The participation of the applicant and of the other bodies selected in the research projects took place in the framework of consortia constituted according to the Cocoon and Dicoems contracts and composed of a coordinator, entrusted with specific administrative and management tasks, and the other participants in the project.
Article 5 of the Cocoon contract fixes a maximum European financial contribution of EUR 6.7 million. The contract, of a total duration of 42 months, states in Article 6 that the project is to be divided into four reporting periods. It follows from that provision and from the Forms C annexed to the application that the first period ran from 1 January to 31 December 2004, the second from 2 January to 31 December 2005, the third from 1 January to 31 December 2006 and the fourth from 1 January to 30 June 2007.
Article 5 of the Dicoems contract fixes a maximum European financial contribution of EUR 2 million. The contract is for a total duration of 30 months, divided, under Article 6 of the contract, into three reporting periods. It follows from that provision and from the Forms C annexed to the application that the first period ran from 1 January to 30 June 2004, the second from 1 July 2004 to 30 June 2005 and the third from 1 July 2005 to 30 June 2006.
Pursuant to Article 7 of both contracts, for each reporting period, the consortia are to send the Commission, within a certain period, reports covering the activity carried out, the state of advancement of the projects, the use of resources and the ‘Form C Financial Statement’ drawn up and supplied by each contractor, relating to the costs which they incur in implementing the contracts and for which they seek reimbursement.
A pre-financing mechanism is envisaged for each of the two projects and the arrangements for the grant of the financial contribution are defined, in particular, in Article 8 of the Cocoon contract and Article 8 of the Dicoems contract. Under Article 8(2)(d) of the contracts in question, any payment at the end of a reporting period accompanied by an audit certificate is to be considered final, subject to the results of any audit or review, which may be carried out pursuant to Article II.29 of the general conditions set out in Annex II to those contracts (‘the general conditions’).
According to Article 12 of each of the Cocoon and Dicoems contracts, the law of Belgium is to govern the contracts.
Article 13 of the contracts stipulates a jurisdiction clause, under which the General Court is to have sole jurisdiction to hear any disputes between the Commission and the contractors as regards the validity, the application or any interpretation of the contracts.
The general conditions, which, pursuant to Article 14 of each contract, are to form an integral part of the contract, include Part A, concerning, in particular, the implementation of the relevant projects, termination of the contract and responsibility (Articles II.2 to II.18), Part B, on financial provisions and controls, audits, recoveries and sanctions (Articles II.19 to II.31) and Part C, concerning intellectual property rights (Articles II.32 to II.36).
Article II.6 of the general conditions states that subcontracting is possible for minor services which do not represent the core of the project. In order for the costs relating to a subcontracting agreement to be eligible, certain conditions must be satisfied.
Article II.7(1) of the general conditions states that reports are to be submitted to the Commission within 45 days following the end of the relevant periods. Article II.7(2) specifies that, for each reporting period, the consortium is to submit the reports provided for in the contracts (in particular the activity and management reports); this includes, inter alia, the Form C Financial Statements supplied by the contractors for each period.
Under Article II.8(3) of the general conditions, the Commission undertakes to evaluate all reports submitted within 45 days of receipt thereof. The absence of a response from the Commission within that period is not to imply approval. The Commission may reject those reports even after the time-limit for payment established in the contract. Article II.8(4) states that approval of the reports is not to imply exemption from any audit or review carried out in accordance with Article II.29.
Article II.16 of the general conditions sets out the situations in which the participation of a contractor may be terminated.
Article II.16(1) of the general conditions states that, in the case of breach of any obligation imposed by the contract, the Commission is to request the consortium to find appropriate solutions within a maximum period of 30 days and, in the absence of a satisfactory solution within that period, the Commission is to terminate the participation of the contractor concerned.
Article II.16(2) of the general conditions states that the Commission may immediately terminate the participation of a contractor:
‘(a)
where the contractor has deliberately or through negligence committed an irregularity in the performance of any contract with the Commission;
(b)
where the contractor has contravened fundamental ethical principles as referred to in the Rules for Participation’.
Article II.1(11) of the general conditions defines ‘irregularity’ as meaning ‘any infringement of a provision of Community law or any breach of a contractual obligation resulting from an act or omission by a contractor which has, or would have, the effect of prejudicing the general budget of the European Communities or budgets managed by it through unjustified expenditure’.
Article II.16(8) of the general conditions provides that, where the consortium continues the project, the Commission is either to issue a recovery order to the defaulting contractor or request the latter, with a copy to the consortium, to transfer to the consortium the amount owed to the Commission within 30 days. Should the contractor not comply with that requirement, the Commission is to establish a recovery order for any amounts due by the contractor. Certain conditions of the contract (and in particular Articles II.29, II.30 and II.31, on controls, audits and recovery) are to continue to apply to the defaulting contractor after termination of its participation and to the contractors in the case of termination of the contract.
Article II.19(1) of the general conditions defines the costs eligible for financing and states the following:
‘Eligible costs incurred for the implementation of the project must fulfil all of the following conditions:
(a)
they must be actual, economic and necessary for the implementation of the project; and
(b)
they must be determined in accordance with the usual accounting principles of the contractor; and
(c)
they must be incurred during the duration of the project as identified in Article 4.2 …;
(d)
they must be recorded in the accounts of the contractor that incurred them, no later than at the date of the establishment of the audit certificate referred to in Article II.26. The accounting procedures used in the recording of costs and receipts shall respect the accounting rules of the State in which the contractor is established as well as permit the direct reconciliation between the costs and receipts incurred for the implementation of the project and the overall statement of accounts relating to the overall business activity of the contractor …’
Article II.19(2)(a) to (h) of the general conditions mentions eight categories of non-eligible costs. Article II.19(2)(i) further states that any costs which does not meet the conditions established in Article II.19.1 are non-eligible.
Articles II.20 and II.21 of the general conditions define two types of costs which are eligible under Article II.19, namely, first, direct costs, which are attributable directly to the projects, and, second, indirect costs, which are not imputable directly to the project but can be identified and justified by the contractor’s accounting system as being incurred in direct relationship with the direct costs.
For the purpose of reporting the costs incurred in the implementation of the projects and the performance of the corresponding contracts, Article II.22 of the general conditions sets out three cost reporting models, including the additional cost model, which may be used by non-commercial or non-profit organisations established either under public law or private law or by international organisations, which do not have an accounting system that allows the share of their direct and indirect costs incurred in the implementation of the projects to be distinguished.
Article II.20(2) of the general conditions states that contractors using the additional cost model may charge to the project only those direct costs that are additional to their recurring costs. It also states:
‘Direct costs of personnel shall be limited to the actual costs of the personnel assigned to the project where the contractor has concluded with the personnel:
a temporary contract for working on Community RTD projects;
a temporary contract for completing a doctorate;
a contract which depends, in full or in part, upon external funding additional to the normal recurring funding of the contractor. In that case, the costs charged to this contract must exclude any costs borne by the normal recurring funding.’
Article II.26 of the general conditions provides for the preparation of audit certificates by an external auditor. That requirement states,
in fine
, that certification by external auditors does not diminish the liability of contractors according to the contract or the rights conferred on the European Union by Article II.29 of the general conditions.
It follows from Article II.27 of the general conditions that pre-financing granted to the coordinator on behalf of the consortium is to remain the property of the Union.
Article II.28(1) of the general conditions states that, without prejudice to the controls and audits, the amount of the final payment to the contractor is to be adopted on the basis of the reports provided for in Article II.7 which the Commission has approved.
Article II.29 of the general conditions relates to the controls and audits to which contractors may be subject. It provides:
‘1.
The Commission may, at any time during the contract and up to five years after the end of the project, arrange for audits to be carried out, either by outside scientific or technological reviewers or auditors, or by the Commission departments themselves including OLAF. Such audits may cover scientific, financial, technological and other aspects (such as accounting and management principles) relating to the proper execution of the project and the contract. Any such audit shall be carried out on a confidential basis. Any amounts due to the Commission as a result of the findings of any such audit may be the subject of a recovery as mentioned in Article II.31.
…
2.
The contractors shall make available directly to the Commission all the detailed data that may be requested by the Commission with a view to verifying that the contract is being properly managed and performed.
3.
The contractors shall keep the original or, in exceptional cases, duly substantiated, authenticated copies, of all documents relating to the contract for up to five years from the end of the project. These shall be put at the Commission’s disposal where requested during the execution of any audit under the contract.
…’
Article II.31(1) of the general conditions provides for the recovery by the Commission of amounts unduly paid to the contractor or of sums reimbursement of which is justified under the terms of the contract. Article II.31(5) provides that, under Article 256 EC, the Commission may adopt an enforceable decision establishing an amount as receivable from persons other than States.
Article II.32 of the general conditions provides that knowledge, defined in Article II.1(14) of the general conditions as the results arising from the projects concerned and also the rights pertaining to such results, is to be the property of the Commission’s contractors which have carried out the work leading to its acquisition.
2.
Belgian law
Article 1134 of the Belgian Civil Code provides that ‘agreements lawfully entered into shall be legally binding on the parties thereto’ (first paragraph) and ‘may be revoked only by mutual consent or on grounds authorised by law’ (second paragraph).
The third paragraph of Article 1134 provides that agreements must be implemented in good faith. Article 1135 of that code provides that ‘agreements shall be binding not only as to their express terms but also as to all the consequences which fairness, custom or the law attach to the obligation [assumed], according to its nature’ and therefore also expresses the principle that contracts must be performed in good faith.
In the event of a dispute as to the performance of a contract, the burden of proof is governed by Article 1315 of the Belgian Civil Code, which provides that:
‘A party claiming performance of an obligation must prove that the obligation exists.
Conversely, a party who claims to have been released [from an obligation] must prove that he has made the payment or performed the act payment or performance of which gave rise to the extinction of his obligation.’
Article 1341 of the Belgian Civil Code provides that, in relation to proof, ‘there must be a document executed before a notary or signed in private whenever the subject-matter of the agreement exceeds a sum or value of EUR 375, even in the case of voluntary deposits’. That Article states that ‘no witness evidence adduced in order to contradict or supplement the terms of the document, or allegation of anything said before, at the time of or since the documents were established, shall be admitted, even where the sum or value concerned is less than EUR 375’. It further provides:
‘All [of the foregoing] is without prejudice to the requirements of the laws on commerce.’
Article 1347 of the Code provides:
‘The above rules shall not apply where there is prima facie evidence in writing.
Prima facie evidence in writing means any act in writing which has originated with the party against whom the claim is made, or the person whom he represents, and which renders the fact alleged plausible.’
Background to the dispute
The applicant is a not-for-profit association formed under Belgian law and established in Brussels (Belgium).
It states that it participated for an amount of EUR 166 410.50 in the Dicoems project and for an amount of EUR 260 756.53 in the Cocoon project, a total of EUR 427 167.03.
It states that it received the sum of EUR 176 167.87 and is therefore still owed EUR 250 999.16 in the context of both projects. Following the bankruptcy of the coordinator for the Dicoems contract, the applicant was designated in its place with effect from 19 January 2007. In the context of the Cocoon contract, the coordinator was struck from the register of companies and was replaced by another coordinator.
By letter of 12 February 2009, the Commission informed the applicant that it had decided to carry out an audit, pursuant to Article II.29 of the general conditions, in order to ascertain that the Dicoems and Cocoon contracts had been properly performed from an accounting and financial point of view. The audit took place on 3 and 4 March and 7 April 2009.
By letter of 19 May 2009, the Commission sent the applicant a draft version of the audit report (‘the draft audit report’), requesting it to submit its comments within 30 days of receipt of the letter.
By letter of 18 June 2009, the applicant requested the Commission to extend by four months the deadline for submission of the abovementioned comments, on the grounds, inter alia, that it had moved offices in 2004 and needed to undertake a comprehensive review of the relevant documents and also to search for pertinent and/or missing items.
By letter of 23 June 2009, the Commission granted the applicant an extension of 30 days of the deadline for submitting its comments, explaining that the extension of four months initially sought by the applicant was unreasonable, since, in accordance with Article II.29(3) of the general conditions, contractors were required to keep the original (or, in certain cases, duly authenticated copies) of all documents relating to the contract for up to five years from the end of the project and that, according to the same provision, those documents should be put at the Commission’s disposal where it so requested during the execution of any audit.
The Commission also pointed out that, according to Article II.19(1)(d) of the general conditions, eligible costs incurred for the implementation of the projects had to be recorded in the accounts of the contractor no later than at the date of the establishment of the audit certificate referred to in Article II.26 of the general conditions. The Commission therefore observed that, in reality, all documentation relating to the costs incurred ought to have been in the applicant’s possession on the day on which the audit was carried out at its premises.
By letters of 3 and 6 July 2009, the applicant stated that the documents were in Italy and that, for the Cocoon contract, it was necessary to obtain leave from a court. The applicant asked the Commission for a copy of the Dicoems and Cocoon contracts, including a full description of the corresponding projects and the obligations of contractors, and also a copy of the costs statements submitted by the coordinators of the projects; it explained that it wished to ascertain that the documents in the Commission’s possession corresponded to the documents which the applicant had submitted.
By letter of 10 July 2009, the Commission sent the applicant a copy of the contracts and the respective annexes thereto and also the financial documents received on the applicant’s behalf.
By letter of 19 August 2009, the applicant sent its comments on the draft audit report and certain documents to the Commission.
On 30 September 2009, the Commission informed the applicant that the audit had been closed and sent it the final audit report (‘the final audit report’).
In the context of the final audit report, the Commission considered that the applicant had breached the contractual provisions and committed serious irregularities, within the meaning of Article II.1(11) of the general conditions, in the performance of the Dicoems and Cocoon contracts. It referred, in particular, to the absence of traceability in the applicant’s accounting systems of the costs reimbursement of which the applicant sought, the absence of the originals (or duly authenticated copies, where they were allowed) of the documents relating to the performance of the contracts, the fact that certain costs reimbursement of which the applicant sought were not actual costs and did not correspond to the supporting documents relating to the projects, the fact that the applicant, in signing the financial documents sent to the Commission, certified circumstances that did not comply with reality as regards the costs incurred and the supporting documents and the fact that agreements with subcontractors had been concluded in breach of the contractual provisions. The Commission therefore considered that, of the amount of EUR 329 140.69 claimed as eligible costs, the sum of EUR 315 739.99 must be rejected, and concluded that the applicant’s participation in the projects should be terminated in application of Article II.16 of the general conditions.
A meeting between the applicant and the Commission took place on 3 December 2009.
By email of 11 January 2010, the Commission replied to the applicant’s arguments and informed it that its ignorance of the financial and accounting provisions governing the Dicoems and Cocoon projects could not in any event relieve it of its responsibility for the irregularities which it had committed.
By letter of 20 January 2010, the Commission informed the applicant that it proposed to terminate its participation in the Dicoems and Cocoon projects, pursuant to Article II.16(2) of the general conditions, and therefore to demand repayment of the excess sums paid, amounting to EUR 165 302.15, that is to say, an amount of EUR 121 261.06 for the Cocoon project and EUR 44 041.09 for the Dicoems project.
By letter of 24 February 2010, the applicant submitted comments on the Commission’s letter of 20 January 2010.
By letter dated 21 April 2010, the Commission replied to those comments.
The applicant also requested access, in particular by letters of 24 February and 3 and 10 May 2010, to the correspondence between the Commission and the other members of the consortia for the two projects. On 1 July 2010, a meeting took place between the applicant’s representatives and the Commission. On 9 July 2010, the applicant limited the list of documents to which it sought access. The requested documents were communicated to the applicant on 5 August 2010.
By letter of 15 September 2010, the applicant sent the Commission its comments on the final audit report.
On 22 October 2010, the Commission replied to those comments; it concluded, after reconsidering the costs reimbursement of which had been claimed by the applicant and the grounds on which they were non-eligible under the contractual provisions, that the evidence and arguments submitted were not such as to call into question the conclusions formulated at the close of the audit procedure.
By letter of 4 November 2010, the applicant requested further time to reply to the letter of 22 October 2010.
By letter of 5 November 2010, the Commission informed the applicant that its participation in the Cocoon and Dicoems projects was terminated on the basis of Article II.16(2) of the general conditions, for the reasons stated in the letter of 20 January 2010. It also stated that, in application of Article II.16(8) of the general conditions, it would recover, by debit note, the sum of EUR 164 080.03 wrongly paid to the applicant (that is to say, EUR 121 098.51 relating to the Cocoon contract and EUR 42 981.52 relating to the Dicoems contract).
On 1 December 2010, the applicant lodged a complaint with the European Ombudsman, alleging maladministration by the Commission. The Ombudsman rejected that complaint on 1 February 2011.
On 7 December 2010, the applicant sent its final comments, requesting, in particular, suspension of the recovery of the amount indicated in the letter of 5 November 2010 pending the decision of the Ombudsman.
On 13 December 2010, the Commission sent the applicant a debit note in the amount of EUR 164 080.03 (‘the debit note’), setting out, for each contract, the amount considered eligible, the sums already paid and the amount to be recovered.
Procedure and forms of order sought
By application lodged at the Court Registry on 21 February 2011, the applicant brought the present action. Its application for a stay of execution of the Commission’s decision of 5 November 2010 terminating the contracts relating to the Cocoon and Dicoem projects and the debit note, lodged at the Court Registry by separate document on 7 March 2011, was dismissed by order of the President of the General Court of 18 November 2011 in Case T‑116/11 R
EMA
v
Commission
, not published in the ECR.
Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure. In the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, the Court decided to invite the parties to answer certain questions, which the parties did within the prescribed period.
At the hearing on 27 February 2013, the parties presented oral argument and answered the questions put by the Court.
The applicant claims that the Court should:
—
declare the action admissible and well founded;
—
primarily:
—
find and declare that the applicant correctly complied with its contractual obligations under the Dicoems and Cocoon contracts and that it is therefore entitled to reimbursement of the costs which it incurred in the performance of those contracts, as set out in the Forms C sent to the Commission, including the Form C relating to the fourth period of the Cocoon contract;
—
find and declare that the Commission’s decision terminating those contracts, contained in the letter of 5 November 2010, is unlawful;
—
consequently, declare that the Commission’s claim for reimbursement of the sum of EUR 164 080.03 is unfounded and, in consequence, annul the debit note by issuing a corresponding credit note or, in any event, declare it unlawful;
—
order the Commission to pay the balance due to the applicant on the basis of the Forms C sent to the Commission, in the amount of EUR 250 999.16;
—
order the Commission to pay the applicant fair compensation for the harm which it sustained owing to its failure to conduct controls;
—
in the alternative:
—
find the Commission liable on the ground of unjust enrichment and a wrongful act;
—
consequently, order the Commission to pay compensation for the material and non-material harm sustained by the applicant, to be quantified in the course of these proceedings;
—
in any event, order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action as inadmissible and unfounded;
—
dismiss the claim for compensation as inadmissible and unfounded;
—
order the applicant to pay the costs.
In the rejoinder, the Commission has submitted a counterclaim. It asks the Court to confirm the debit note and the termination of the applicant’s participation in the contracts and, consequently, to order the applicant to repay the sum of EUR 164 080.03, together with interest, pursuant to Article II.31(2) of the general conditions.
Law
1.
Preliminary observations
First, it should be noted that on 20 July 2011 the applicant lodged, in addition to the reply, a letter, which was placed on the file and to which the Commission was requested to reply in the rejoinder. In that letter of 20 July 2011, the applicant complains that the Commission’s defence contains numerous references to arguments and documents relating to the interlocutory procedure, which is a separate procedure. That, in the applicant’s submission, gives rise to confusion and entails a direct increase in the number of pages in the defence, so that the number of pages fixed in the directions to the parties is exceeded.
The Court observes that this is not a plea as such and that no argument is derived from it so far as the heads of claim in the application are concerned. Even on the assumption that it is an argument raised in support of the present action, it must therefore be rejected as ineffective.
Furthermore, and in any event, it should be observed that the arguments in the interlocutory procedure are reiterated by the Commission in the main procedure autonomously and independently of those raised in the interlocutory procedure and that they are not mere references to those arguments. They cannot therefore have contributed to an increase in the number of pages fixed by the directions to the parties. In addition, they are developed in a complete and structured fashion. Last, the documents relating to those arguments are cited clearly in the defence, without any possibility of confusion, and are again annexed to the rejoinder.
That argument must therefore be rejected in any event.
Second, it is apparent from the application, and in particular from the second head of claim, that the applicant seeks, in essence, annulment of the debit note aimed at obtaining repayment by the applicant of the sum at issue.
In that regard, it should be borne in mind that acts adopted by the institutions in a contractual context from which they are inseparable are, by their very nature, not among the measures covered by Article 288 TFEU annulment of which may be sought from the Courts of the Union pursuant to Article 263 TFEU (see order of 12 October 2011 in Case
T-353/10
Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro
v
Commission
[2011] ECR II-7213
, paragraph 24 and the case‑law cited).
In the present case, by its debit note, which refers to its letter of 5 November 2010, the Commission requests the applicant to pay a debt, to which the Commission considers it has a claim, made up of the sums paid corresponding to costs which the Commission regarded as non-eligible under the contracts at issue and which it did not accept. In doing so, the Commission has remained within the contractual framework and relies, in particular, on Article II.29(1) in conjunction with Article II.31 of the general conditions.
The debit note therefore falls within the context of the contracts between the Commission and the applicant, in that it seeks to recover a debt the origin of which is in the terms of the contracts and in that its purpose is to enforce rights which the Commission derives from the terms of those contracts between it and the applicant (see, to that effect, Joined Cases
T-428/07 and T-455/07
CEVA
v
Commission
[2010] ECR II-2431
, paragraph 53; order of 31 August 2011 in Case T‑435/10
IEM
v
Commission
, not published in the ECR, paragraph 44; and order in
Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro
v
Commission
, paragraph 72 above, paragraph 26).
Since the debit note cannot be separated from the contractual framework, the fourth head of claim, seeking its annulment or a declaration that it is illegal, must therefore be considered inadmissible. The arguments put forward in support of this head of claim must therefore be rejected as supporting an inadmissible head of claim. Furthermore, even on the assumption that the head of claim seeking annulment of the debit note might be reclassified as seeking repayment of the sums at issue, in application of the case‑law of this Court (see order in
Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro
v
Commission
, paragraph 72 above, paragraphs 34 and 35 and the case‑law cited), it must be held that, in any event, the pleas raised against the debit note must be joined with those raised in support of the claim for payment.
In its action, based on Articles 268 TFEU, 272 TFEU and 340 TFEU, the applicant raises five pleas in law. The first four pleas are raised in support of the applicant’s principal claim and the fifth, which concerns the Commission’s liability on account of undue enrichment and unlawful conduct, is raised in support of the alternative claim.
2.
The principal claim, based on the first four pleas
The applicant puts forward four pleas in law. The first alleges breach of Articles II.19, II.20, II.21 and II.25 of the general conditions. The second plea alleges breach by the Commission of its supervisory obligations, the principle of good faith and the principle of fair cooperation in the performance of the contracts. The third plea alleges breach by the Commission of the principles of sound administration and proportionality and the fourth plea alleges breach of the rights of the defence and failure to state reasons.
The first plea, alleging breach of Articles II.19, II.20, II.21 and II.25 of the general conditions
It is appropriate, first of all, to determine the applicant’s claim concerning the amount relating to the fourth period of the Cocoon project, which was not paid to the applicant and which is not covered by the audit. The applicant puts forward, next, in essence, the complaint relating to the absence of choice of the costs model, the complaint concerning the non-eligibility of costs invoiced but not yet paid, the complaint relating to direct costs of personnel, the complaint relating to indirect costs of personnel and, finally, the complaint alleging the inconsistency of the final audit report, which will be examined in turn.
The claim for payment concerning the fourth period
First of all, it should be observed that the applicant includes in its claim for reimbursement the amount of EUR 98 030.42 for the fourth period of the Cocoon project. It maintains that it is clear from the final audit report that the Commission had the details relating to costs and that no delay in submitting documents is attributable to the applicant. In its answers to the measures of organisation of procedure, the applicant adds that the five-year period specified in Article II.29 of the general conditions has expired and that an audit is no longer possible.
The Court notes that the amount corresponding to the fourth period, from 1 January to 30 June 2007, was not paid to the applicant and was not covered by the audit. In fact, it is apparent from the answers to the written questions put by the Court that the financial documents relating to that period are currently being examined by the Commission.
It should be borne in mind that, while an audit is not in itself required under the contractual provisions applicable in the present case, it follows from Article 8(2) of the contracts and from Article II.28(1) of the general conditions that the amount of the final payment to the contractor is to be adopted on the basis of the reports provided for in Article II.7 of the general conditions which have been approved by the Commission. In addition, it follows from Article II.8(3) of the general conditions that the Commission’s silence does not constitute approval of the reports in question.
In the present case, it should be observed that, irrespective of to whom the delay in communicating the documents relating to the fourth period of the Cocoon contract is imputable, the Commission did not adopt a position on the eligibility of the sums at issue and did not approve the reports relating to that fourth period. The mere fact that the sums at issue were not the subject of criticism by the Commission cannot suffice to substantiate the conclusion that the Commission approved them and that the relevant amounts are eligible.
Nor is the limitation period referred to in Article II.29 of the general conditions, namely five years from the end of the project, on which the applicant relies, relevant, as it applies to the possibility of carrying out an audit or a check and not the Commission’s approval of the financial reports.
Last, the applicant does not refer to any document or justification relating to the amount which it claims and the costs relating to the fourth period at issue.
Accordingly, the applicant’s claim relating to the sum of EUR 98 030.42 corresponding to the fourth period of the Cocoon contract, which has not been rejected by the Commission and the amount and substance of which are not even proven by the applicant, must be rejected as inadmissible.
The complaint relating to the absence of a choice of costs model
The applicant submits that, as a not-for-profit association, it was required to choose the additional costs model. In this case, it chose that model, because its accounting system did not enable it to isolate the direct costs, but allowed the additional costs borne for the project to be identified. That system was therefore, in the applicant’s submission, a ‘mandatory choice’.
It should be observed that it is common ground that the applicant chose the additional costs model, in accordance with Article II.22(3) of the general conditions.
The fact that this choice was necessary on account of the applicant’s accounting system is merely the application of the contractual requirements to which the applicant agreed. It cannot therefore complain that it was forced to choose the additional costs model.
This complaint must therefore be rejected.
The complaint relating to the non-eligibility of costs invoiced but not yet paid
The applicant maintains that the costs of personnel in its accounts correspond to services already provided and justified by invoices issued by the consultants and time sheets and that the costs in question are eligible, even though the invoices have not yet been paid. To require actual payment is contrary to Article II.19(2) of the general conditions and constitutes discrimination on the basis of the applicable accounting rules.
It should be noted that Article II.19(1) of the general conditions provides, in essence, that, in order to be eligible, costs must satisfy three conditions. In particular, they must be incurred during the duration of the project, except for the costs incurred in drawing up the final report (Article II.19(1)(c)) and they must be recorded in the accounts of the contractor that incurred them, no later than at the date of the establishment of the audit certificate referred to in Article II.26 of the general conditions. The accounting procedures used in the recording of costs and receipts are to comply with the accounting rules of the State in which the contractor is established and also permit the direct reconciliation between the costs and receipts incurred for the implementation of the project and the overall statement of accounts relating to the overall business of the contractor (Article II.19(1)(d)).
In this case, it is apparent from the final audit report that certain costs were not recorded in the applicant’s accounts supplied during the audit, nor had they been supported by the applicant, which applies ‘cash basis’ accounting. That conclusion was maintained in the light of the accounts and financial statements communicated on 19 August 2009.
The Court observes that, in its letter to the Commission of 19 August 2009, the applicant denied that it applied ‘cash basis’ accounting. However, before the Court, and as it acknowledged at the hearing, the applicant states that it did apply such ‘cash basis’ accounting, which was recorded in the minutes of the hearing. In other words, its revenues and expenditure are entered in the accounts at the time when the proceeds are received and the amounts owed actually paid.
However, it is apparent from the documents produced on 19 August 2009 that certain costs of personnel are shown in the Forms C as ‘to be paid’.
Those unpaid items of expenditure cannot therefore be considered to have been recorded in the accounts by the applicant in the context of its ‘cash basis’ accounting system.
The Commission was therefore correct to infer that certain costs were not borne by the applicant and that they were not ‘recorded’ in its accounts no later than the date of establishment of the audit certificate, as required by Article II.19(1)(d) of the general conditions.
It follows that the applicant has not shown that the Commission’s findings relating to non-compliance with the accounting requirements laid down in the contractual provisions applicable in relation to the eligibility of costs, in particular in Article II.19(1) of the general conditions, were unfounded.
The arguments raised by the applicant do not invalidate that conclusion.
The applicant maintains that the costs in question related to costs that were actual, effective and not excessive. However, that argument does not answer the Commission’s assertion, which relates to the fact that the costs were not registered in the applicant’s accounting system.
In addition, the applicant maintains that to require actual payment would be contrary to Article II.19(2) of the general conditions. It should be borne in mind that Article II.19(2)(a) to (h) mentions eight categories of non-eligible costs. Article II.19(2)(i) further states that any cost which does not meet the conditions established in paragraph 1 is non-eligible. Since, in the present case, the costs were rightly considered not to meet certain conditions laid down in Article II.19(1) of the general conditions (paragraph 97 above), the applicant’s argument must be rejected in application of Article II.19(2)(i) of the general conditions.
Last, the applicant maintains that the fact that costs actually paid cannot be considered eligible constitutes discrimination on the basis of the accounting rules applicable.
However, that argument must also be rejected. The Commission has merely applied, in the present case, the contractual provisions on the conditions of the eligibility of costs, taking account of the accounting rules applicable to the applicant, which mean in the present case that costs which have not yet been paid cannot be considered to have been recorded in the accounting system and thus to be eligible. Furthermore, it is clear from the file, and in particular from the Commission’s letter of 22 October 2010, that the advance payments made to the applicant were of such a kind as to cover the costs which it incurred in implementing the projects concerned.
Furthermore, according to consistent case‑law, the principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated alike, unless such treatment is objectively justified (see, by analogy, Case
C-177/10
Rosado Santana
[2011] ECR I-7907
, paragraph 65). Accordingly, even on the assumption that, as the applicant submits, businesses subject to different accounting rules have contractual rules applied to them which are different from those applicable to the applicant, such a finding would not in itself be contrary to the principle of non-discrimination.
This complaint must therefore be rejected.
The complaint relating to direct costs of personnel
The applicant maintains that it produced proof of the existence of contracts of employment for the personnel employed in the context of the Cocoon and Dicoems projects, by means of written statements relating to the services provided and the sums received, invoices issued by consultants and declarations on oath. It claims that the costs of personnel ought therefore to have been accepted even in the absence of written contracts, on the ground that Belgian law allows verbal contracts.
It should be observed that it is not disputed that Belgian law allows verbal contracts. The Commission itself acknowledged that in the context of the audit (page 43 of the final audit report) and also in its letter of 22 October 2010 to the applicant.
In addition, Article II.20(2) of the general conditions provides, inter alia, that the direct costs of personnel are to be limited to the actual costs of the personnel assigned to the project where the contractor has concluded a contract with the personnel concerned.
That provision thus refers to the existence of contracts, but not to their written form.
In the present case, in the context of the inter partes procedure, the applicant sent the Commission, by letter of 19 August 2009, documents relating to a number of persons in the context of the Cocoon and Dicoems projects.
First of all, it should be observed that, contrary to the applicant’s contention, the Commission examined the documents thus communicated and took them into account in the audit. The applicant’s comments of 19 August 2009 are expressly mentioned in the final audit report. It is clear from pages 2 and 42 of that report that those comments were carefully examined and that, where appropriate, as for the direct costs relating to travel and the related indirect costs, the findings of the audit were reviewed and amended and the eligible amounts recalculated. Point 12 of the final audit report thus summarised the comments of 19 August 2009 (page 42 of the final audit report) and set out the reasons why the information contained in those comments was or was not taken into account, for both contracts and by category of costs.
Next, the Court must consider whether, in the light of the documents produced by the applicant, the existence of contracts between it and the various persons involved in the Cocoon and Dicoems contracts ought to have been noted in the audit and whether the costs of the relevant personnel ought to have been considered eligible, in the context of both the contracts at issue.
In that regard, it should be borne in mind that it is for the applicant, which bears the burden of proving that its claim is well founded in law and in fact, to claim and, where it is disputed, to prove that the expenditure of which it claims reimbursement is eligible for European Union funding in the light of the applicable rules (judgment of 25 April 2012 in Case T‑329/05
Movimondo Onlus
v
Commission
, not published in the ECR, paragraph 31).
– The costs of personnel claimed in the context of the Cocoon contract
In the context of the Cocoon contract, the applicant sent the Commission, on 19 August 2009, documents relating to nine persons.
First, for one of those persons (S.G.), removal costs, the only costs concerned were declared eligible, as the Commission stated in answer to a written question from the Court, and are therefore not at issue in the present case.
Second, for five of those persons (J.M., M.D., H-L.Y., I.A. and L.P.), only their curricula vitae were produced. The existence of a contract cannot be accepted on that basis alone and the findings of the audit are therefore not shown to be incorrect so far as those persons are concerned.
Third, for the applicant’s president (V.C.), his curriculum vitae was produced, and also a number of invoices. However, it should be observed that the costs claimed were also considered non-eligible on the ground that those costs were not recorded in the accounts no later than the date of the establishment of the audit certificate, in accordance with Article II.19(1)(d) of the general conditions. The Form C produced by the applicant states that the sums appear as ‘to be paid’.
Accordingly, without there being any need to resolve the issue whether a contract existed, it must be considered that the sums claimed concerning that person were correctly declared to be non-eligible.
Fourth, for two other persons (L.S. and F.M.), the applicant produces, in addition to the curricula vitae, declarations on oath, stating the nature of the services provided in the context of the Cocoon project, the period concerned, the hourly rate and the number of hours worked, and also invoices or corresponding fee notes. In addition, it is apparent from the documents in the file that certain sums thus invoiced were paid to the persons concerned and recorded in the accounting system. In addition, the implementation of the project is not disputed.
In the context of the present case, which is characterised by the fact that the written form of the contracts is not explicitly required either by the Cocoon contract or by Belgian law, it must be considered that such documents, taken together, constitute a body of evidence of such a kind as to prove the existence of a contract within the meaning of Article II.20 of the general conditions.
In that regard, contrary to the Commission’s contention, Article II.20 of the general conditions does not provide for any particular forms. In particular, the terms of that article do not require a written contract, as the Commission acknowledged at the hearing.
Furthermore, Article 1347 of the Belgian Civil Code allows proof by written documents originating with the person against whom the claim is made which render the alleged fact plausible. The supporting documents supplied by the applicant constitute such prima facie written evidence within the meaning of that code which, taken together, render the existence of a contract between the applicant and the two persons concerned plausible.
Accordingly, the findings made in the context of the audit that there was no contract between the applicant and those two persons, in spite of the documents produced during the inter partes procedure, are incorrect.
The Commission’s arguments do not undermine that conclusion. In answer to the written questions put by the Court, the Commission maintains that Article 1347 of the Belgian Civil Code is irrelevant, as it is not a matter of proving the existence of a financial obligation, but the existence of a contract concluded in the forms required by Article II.20 of the general conditions.
However, as stated previously (paragraph 120 above), Article II.20 of the general conditions provides for the existence of a contract but does not specify the form which it must take.
Furthermore, Article 1347 of the Belgian Civil Code is in Section II, on proof by evidence, which forms part of Chapter VI, entitled ‘Proof of obligations and proof of payment’, which itself is in Title III, entitled ‘Contracts or obligations imposed by agreements in general’. Article 1347 of that code is therefore relevant in the present case.
The Commission contends that Article 1347 of the Belgian Civil Code is not applicable, as it refers to written acts originating with the person against whom the claim is made (the debtor). In its submission, the applicant is the debtor whereas the invoices and declarations on oath originate with the collaborators alleged to be creditors of the applicant and not with the applicant itself.
However, in this case it is a matter of determining the eligible costs of personnel and therefore of proving the existence of contracts concluded by the applicant with its personnel. The documents produced by the applicant are therefore relevant for the purpose of proving the existence of a contract, as required by Article II.20 of the general conditions.
The arguments raised by the Commission in its answers to the written questions put by the Court must therefore be rejected.
It follows that, in the light of the documents produced during the inter partes procedure, the existence of a contract within the meaning of Article II.20 of the general conditions ought to have been accepted in the case of L.S. and F.M., contrary to the findings of the audit in that respect.
The Court must therefore examine whether the costs of personnel relating to those persons were non-eligible for reasons other than the absence of a contract.
In the first place, in the case of L.S., the audit states that the costs claimed and refused come, in the context of the first period (between 1 January and 31 December 2004), to the sum of EUR 6 000 (168 hours at an hourly rate of EUR 35.71). The audit also notes, in addition to the absence of a contract, that those sums are correctly recorded in the accounts, that there are time sheets, but that the costs do not agree with the amounts and periods stated on the invoices.
It is apparent from the documents enclosed with the letter of 19 August 2009 to the Commission that, in her declaration on oath of 14 August 2009, L.S. affirms that she supplied intellectual services to the applicant in the context of the Cocoon project from 1 January 2004 until ‘31 June 2007’, having as their object administrative monitoring and making contacts for the organisation of the various meetings relating to the project. The hourly rate of EUR 50 is stated, and also the total amount of her remuneration of EUR 4 500, invoiced in three fee notes of 1 January and 27 December 2006 and 25 June 2007. She states that the payments of EUR 1 500, EUR 2 000 and EUR 1 000 were made on 26 January 2006 and 18 January and 25 June 2007 respectively.
The applicant also provided the Commission with the fee notes from L.S., stating an hourly rate of EUR 30, of 1 January 2006 (EUR 1 500) and 27 December 2006 (EUR 2 000) relating to the Cocoon project.
A time sheet indicates an hourly rate of EUR 30 and refers, in particular, to the two fee notes of 1 January and 27 December 2006.
In addition, the amount of EUR 3 500 appears in the Forms C sent to the Commission on 19 August 2009 in respect of the third period as having been paid. In its letter of 22 October 2010, the Commission acknowledged, moreover, that the amount of EUR 3 500 had been paid and recorded in the accounts.
In the light of the foregoing, it must be considered that, in the context of the inter partes procedure that gave rise to the final audit report, the applicant submitted supporting documents establishing that, so far as the sum of EUR 3 500 was concerned, the costs of personnel declared in respect of L.S. corresponded to services actually provided, relating to the project, paid and recorded in the accounting system in respect of the third period. The applicant thus demonstrated, to the extent of EUR 3 500, the existence of actual costs of personnel assigned to the project that must be regarded as eligible within the meaning of Articles II.19 and II.20 of the general conditions.
In view of the circumstances of the present case as thus described (paragraphs 132 to 136 above), the Commission’s arguments concerning the discrepancies in the amounts and periods found between the documents submitted during the audit and those submitted on 19 August 2009, or before the closure of the audit on 30 September 2009, do not suffice to substantiate the conclusion that that amount of EUR 3 500 was not eligible.
The Court observes that the amount of EUR 3 500 was paid and entered in the accounts. It is supported by the fee notes of 1 January 2006, for a sum of EUR 1 500, and 27 December 2006, for a sum of EUR 2 000, sent to the Commission and indicating an hourly rate of EUR 30. The difference between the hourly rate stated in the declaration on oath and that stated in the fee notes is the result of a drafting error in the declaration on oath, as the applicant stated in answer to a written question from the Court, and the hourly rate applicable is therefore indeed EUR 30.
The circumstances of the present case are different from those of judgment of 2 October 2012 in Case T‑312/10
ELE.SI.A
v
Commission
, not published in the ECR, paragraphs 113 and 114, to which reference was made at the hearing. In that case, the applicant had not shown that the expenditure at issue was actual and eligible either during the inspection or during the inter partes procedure.
It follows that, in the case of L.S., the audit must be considered incorrect in that it mentions the absence of a contract and considers the costs of personnel non-eligible in the amount of EUR 3 500.
In the second place, in the case of F.M., the audit mentions that the costs claimed and denied came to EUR 6 540 (174 hours at the hourly rate of EUR 37.59) for the second period and EUR 1 224 (27.20 hours at the hourly rate of EUR 50) for the third period. The audit also shows, apart from the absence of a contract, an entry in the accounts of sums for EUR 6 540, the absence of time sheets and amounts that did not agree with the invoices (page 22 of the final audit report).
It is apparent from the documents enclosed with the letter to the Commission dated 19 August 2009 that, in his declaration on oath of 14 August 2009, F.M. asserts that he supplied intellectual services to the applicant in the context of the Cocoon project between 1 January 2004 and ‘31 June 2006’, with the object of monitoring the legal aspects of the project. The rate of EUR 37.50 per hour is stated, as is the fact that his services were voluntary unless the activity should exceed five days.
A fee note dated 30 April 2006 is also enclosed and states for the Cocoon project an invoiced amount of EUR 4 481.28, corresponding to 119.5 hours at an hourly rate of EUR 37.50 for the period January 2004 to December 2005.
Various documents indicate that the sum of EUR 4 481.28, which appears in the accounts, was invoiced and paid in respect of the second period.
The Court finds, first of all, that the costs corresponding to the third period (EUR 1 224) are neither substantiated nor recorded in the accounts before the audit certificate was established, as the Commission states in answer to the written questions put by the Court.
The applicant has adduced no evidence that those costs were actually incurred in respect of the third period or that they were recorded in the accounts.
It was therefore right that those costs were not declared eligible.
As regards the costs corresponding to the second period, it should be observed that the amount of EUR 4 481.28 was paid and recorded in the accounts. It is supported by the fee notes of 30 April 2006 addressed to the Commission. Furthermore, in its letter of 22 October 2010, the Commission acknowledged that the amount of EUR 4 481.28 had been paid and recorded in the accounts.
In the light of the foregoing, it should be considered that the applicant has submitted, in the context of the inter partes procedure preceding the closing of the audit, documents showing that the costs of personnel of EUR 4 481.20 which it declared in respect of F.M. corresponded to services actually performed in respect of the second period, devoted to the project, paid and recorded in the accounts. It thus demonstrated, to the extent of EUR 4 481.28, the existence of actual costs of personnel assigned to the Cocoon project, which must be regarded as eligible within the meaning of Articles II.19 and II.20 of the general conditions.
In the light of the circumstances of the case as set out above (paragraphs 142 to 144 above), the Commission’s argument relating to the lack of correspondence between the amounts claimed and the amounts on the invoices does not suffice to support the conclusion that the sum of EUR 4 481.28 was not eligible. In that regard, as stated above (paragraph 139), the present situation is different from the situation at issue in
ELE.SI.A
v
Commission
, to which reference was made at the hearing, since in that case the applicant had not shown that the expenditure in question was actual and eligible, either during the audit or during the inter partes procedure.
It follows that, in the case of F.M., the audit must be considered incorrect in that it mentions the absence of a contract and considers the costs of personnel to be non-eligible in the amount of EUR 4 481.28.
– The costs of personnel claimed in the context of the Dicoems contract
In the context of the Dicoems contract, the applicant sent the Commission, on 19 August 209, documents relating to nine persons.
First, for five of those persons (F.G., S.R., F.S., N.A. and M.R.), the applicant states that it produced collaboration agreements for the services supplied. It maintains that it was wrong that these costs of personnel were considered non-eligible on the ground that they were connected with subcontracting agreements not previously approved by the Commission.
It is common ground that collaboration agreements existed between the applicant and those consultants for services supplied in the context of the Dicoems contract.
However, it should be observed that the costs relating to those persons were considered non-eligible in the context of the audit for reasons other than the absence of contracts. Thus, the final audit report states that those costs were not recorded in the accounts. Furthermore, it is also apparent from the audit that the conditions on which those persons might be considered to be in-house consultants were not satisfied, that the costs relating to them must therefore be regarded as subcontract costs and that the conditions laid down in that respect were not satisfied.
The Court finds that it follows from the documents produced by the applicant on 19 August 2009 that, in accordance with the findings made in the context of the audit, the costs relating to those persons were not recorded in the accounts. The amounts in question appear on Form C as ‘to be paid’.
Consequently, that finding is in itself sufficient to substantiate the conclusion that the final audit report concluded that the costs relating to those persons were non-eligible because they had not been recorded in the accounts.
Accordingly, it must be considered that those costs are non-eligible, without there being any need to examine the applicant’s argument relating to the incorrect nature of the findings of the audit on subcontracting.
Last, the applicant’s argument that the sums at issue were certified as non-eligible by an independent auditor cannot invalidate that conclusion.
It should be observed that, under Article 8(2)(d) of the contracts at issue, any payment made at the end of a reporting period accompanied by an audit certificate is to be considered final subject to the results of any audit or check that might be carried out pursuant to Article II.29 of the general conditions. In addition, it is stated at Article II.26
in fine
that certification by external auditors does not diminish contractors’ responsibility according to the contract, or the rights conferred on the Union by Article II.29 of the general conditions. In accordance with Article II.29(1) of the general conditions, the Commission may carry out such audits at any time during the contract and up to five years after the end of the project. Those audits may concern scientific, financial, technological and other aspects, such as accounting and management principles, relating to the proper execution of the project and the contract. It follows that the production of external audit certificates attesting to the eligibility of all the additional costs declared by the applicant does not deprive the Commission of the possibility of carrying out an audit following which it may call into question the eligibility of the costs declared by the applicant (judgment of 17 October 2012 in Case T‑286/10
Fondation IDIAP
v
Commission
, not published in the ECR, paragraphs 80 to 84).
Consequently, the applicant has not established that it was incorrect that the costs of personnel relating to those consultants were considered non-eligible.
Second, for the president of the applicant (V.C.), it is apparent from the audit that the costs claimed were considered non-eligible on the ground that there was no contract and that those costs had not been recorded in the accounts at the latest by the time when the audit certificate was established pursuant to Article II.19(1)(d) of the general conditions.
The Court finds, first of all, that the applicant’s argument that a contract of employment between it and its president could not be required, as it would imply that the president signed a contract with himself, must be rejected. It is sufficient to note that in this case the applicant’s president acted as a separate legal person from the applicant, as the Commission emphasises and as the fee notes addressed to the applicant confirm.
Next, the Court observes that it is apparent from the documents sent to the Commission by the applicant on 19 August 2009 that, with the exception of an amount of EUR 3 250 relating to the first period of the Dicoems contract, the sums at issue are all shown on Form C as ‘to be paid’.
Consequently, it is correct that those sums, which were not recorded in the accounts at the latest by the time that the audit certificate was established, were considered to be non-eligible (paragraphs 90 to 104 above). The documents produced by the applicant in that regard do not show that those findings are incorrect.
On the other hand, as regards the amount of EUR 3 250, it must be noted that it is shown as having been paid in the document relating to costs in respect of V.C. and also on Form C relating to the first period, which were sent to the Commission during the inter partes procedure on 19 August 2009.
Furthermore, that amount corresponds to the amount invoiced by means of the fee note of 16 March 2004, under the reference ‘Consultancy for the Dicoems project’. That fee note also specifies the number of hours worked per month (12 hours in January 2004, 12 hours in February 2004 and 12.1 hours in March 2004) and the hourly rate (EUR 90).
In addition, a presentation sheet states that V.C.’s fees include the time spent preparing for and participating in meetings and presenting the project at various conferences.
It should also be observed that, in the context of the audit, that amount was considered to have been recorded in the accounts for the first period of the Dicoems contract (from 1 January to 30 June 2004) and to be consistent with the invoice provided (line one of the table on page 23 of the final audit report). In addition, it must be considered that those costs were recorded in the accounts for the first period and therefore no later than the time when the audit certificate was established on 2 August 2004 (see annex 3 to the final audit report, page 65), in accordance with Article II.19(1)(d) of the general conditions.
It must therefore be considered that, in spite of the absence of a written contract, such documents, taken together, constitute a body of evidence of such a kind as to prove, first, the existence of a contractual relationship between the applicant and its president and as to establish, second, that the costs of personnel of EUR 3 250 relating to V.C. corresponded to services devoted to the Dicoems project carried out in respect of the first period, paid and recorded in the accounts. The applicant has thus shown, to the extent of EUR 3 250, the existence of actual costs of personnel assigned to the Dicoems project, which ought to have been considered eligible within the meaning of Articles II.19 and II.20 of the general conditions.
In the light of the circumstances of this case, the audit must therefore be considered incorrect in that it refers to the absence of a contract and deems non-eligible the costs of personnel relating to V.C. in the amount of EUR 3 250.
Third, for another person (E.C.), the final audit report states that the costs of personnel are non-eligible. Apart from the absence of a contract within the meaning of Article II.20(2) of the general conditions, the final audit report also states that the conditions laid down in the context of an in-house consultancy contract within the meaning of Article 6.1.1 of the Guide on Financial Matters linked with indirect actions of the Sixth Framework Programme are not satisfied. The report adds that the costs relating to E.C. should be considered to be subcontracting costs and do not satisfy the conditions laid down in Article II.6 of the general conditions.
The applicant has not shown that the findings of the audit were incorrect in that respect. It does not dispute that the conditions laid down in the context of an in-house consultancy contract are not satisfied, or that the costs relating to E.C. must be considered to be subcontracting costs even though they did not satisfy the conditions laid down in Article II.6 of the general conditions.
The applicant’s claim must therefore be rejected in so far as it concerns E.C., without there being any need to examine the question of the existence of a contract within the meaning of Article II.20(2) of the general conditions.
Fourth, in the case of another person (J.G.), apart from the absence of a contract, the audit also mentions other grounds of non-eligibility. In particular, it emphasises the fact that there is no indication of the costs that might have been incurred and the fact that such costs were not recorded in the applicant’s accounts before the audit certificate referred to in Article II.19(1)(d) of the general conditions was established. In addition, the audit refers to the inconsistency of the claim for repayment submitted in the context of the Dicoems project with the fact that J.G. appeared as a permanent member of the personnel of the Cocoon project.
The applicant has not contested the findings of the audit in that regard and, in particular, the inconsistency of the claim for payment with the fact that the person concerned appeared as a permanent member of the personnel of the Cocoon project. The applicant has therefore failed to demonstrate that the findings of the audit were incorrect.
It follows that the applicant’s claim must be rejected so far as those costs of personnel are concerned, irrespective of the question of the existence of a contract.
Fifth, and last, in the case of L.S., the audit mentions that the costs claimed and refused with respect to that person came, in the context of the first period, to the sum of EUR 4 000 (127 hours at the hourly rate of EUR 31.50) and, in the context of the second period, to the sum of EUR 3 500 (116 hours at the hourly rate of EUR 30.17). The sole ground of non-eligibility relied on in the audit is the absence of a contract within the meaning of Article II.20(2) of the general conditions.
It is apparent from the documents enclosed with the letter to the Commission dated 19 August 2009 that, in a declaration on oath dated 14 August 2009, L.S. states that he provided intellectual services to the applicant in the context of the Dicoems project from 1 January 2004 to 30 June 2004, with the object of the administrative monitoring and making contacts for the organisation of meetings relating to the project. The rate of EUR 50 per hour is stated. The total amount of his remuneration, EUR 7 500, is also stated to have been allocated according to the enclosed fee notes.
The applicant also provided L.S.’s fee notes, mentioning an hourly rate of EUR 30, of 2 January 2006 (EUR 1 500), 1 March 2004 (EUR 520), 1 June 2004 (EUR 2 000) and 30 June 2004 (EUR 3 480), giving a total amount of EUR 7 500.
A time sheet is also enclosed, mentioning an hourly rate of EUR 30, and also a document stating that the amounts invoiced were paid. That document, in the form of a table, makes clear that the first three fee notes relate to the first period and that the fee note of 30 June 2004 relates to the second period, the total amount being EUR 7 500.
In addition, it is apparent from the Forms C produced on 19 August 2009 that amounts of, respectively, EUR 4 000 in respect of the first period and EUR 3 500 in respect of the second period were paid, or a total of EUR 7 500, which corresponds to the total amount invoiced.
Furthermore, it is not disputed that the project was completed.
In the light of the foregoing, it must be considered that the applicant submitted, in the context of the inter partes procedure before the closure of the audit, supporting documents of such a kind as to establish the existence of a contract within the meaning of Article II.20 of the general conditions. The fact that the hourly rate, stated in the declaration on oath to be EUR 50 whereas it was EUR 30 in the fee notes, is the result of an error, as the applicant stated in answer to a written question put by the Court, does not suffice to invalidate that finding.
As regards the amounts at issue, it should be observed that the total amount corresponds to the fee notes and to the Forms C and that it was recorded in the accounts.
However, it is apparent from the time sheet produced by the applicant that the fee note for EUR 1 500 dated 2 January 2004, which relates to the first period of the Dicoems project, corresponds to hours worked in December, without any indication of the year referred to. However, it can relate only to December 2003, since the first period of the Dicoems project ran from 1 January to 30 June 2004. Article II.19(1)(c) of the general conditions provides that costs are to be eligible if they are incurred during the course of the project. Accordingly, the amount of EUR 1 500, which corresponds to hours worked in December 2003 and therefore before the Dicoems project began, is not eligible.
It follows that the applicant has established that the costs of personnel relating to L.S. correspond, in the amount of EUR 6 000, to services actually provided, devoted to the project, paid and correctly recorded in the accounts and therefore constitute actual costs of personnel that must be considered eligible within the meaning of Articles II.19 and II.20 of the general conditions.
In the light of the circumstances of the case, the audit must therefore be considered incorrect in so far as it mentions the absence of a contract and considers non-eligible the costs of personnel relating to L.S. in the amount of EUR 6 000.
It follows from all of the foregoing that the applicant’s arguments, alleging that the costs of personnel ought to have been accepted as eligible, must be upheld with respect to, in the context of the Cocoon contract, the sums of EUR 3 500 relating to L.S. and EUR 4 481.28 relating to F.M. and also, in the context of the Dicoems contract, the sums of EUR 3 250 relating to V.C. and EUR 6 000 relating to L.S.
Accordingly, the applicant’s claim must be upheld in respect of the direct costs of personnel in the amount of EUR 7 981.28 for the Cocoon contract and EUR 9 250 for the Dicoems contract, or a total amount of EUR 17 231.28. The claim must be rejected as to the remainder.
The complaint relating to the indirect costs
The applicant maintains that the fact that the greatest part of the direct costs was considered non-eligible wrongly entailed a proportionate reduction of the eligible indirect costs.
It should be borne in mind in that regard that the third indent of Article II.22(1) of the general conditions provides that, in the context of the additional costs model, indirect costs are to be evaluated at 20% of the direct additional costs less the subcontracting costs.
As previously stated (paragraphs 189 and 190 above), the final audit report must be considered incorrect as concerns the calculation of the direct costs of personnel in the amount of EUR 7 981.28 for the Cocoon contract and EUR 9 250 for the Dicoems contract.
It follows that the indirect costs must be re-calculated to take due account of the increase in the eligible direct costs, subject to the subcontracting costs.
The complaint alleging inconsistency in the final audit report
The applicant maintains that the final audit report is inconsistent and that it does not state clearly the basis on which certain amounts were considered eligible. Although certain contracts of employment were considered to be invalid or non-existent, certain costs of personnel were considered eligible.
The Court observes that it follows from the final audit report that certain costs were recognised as eligible because they were recorded in the accounting documents and sufficiently substantiated. For example, point 5.3.3 of the final audit report (page 28 of that report) states that the amount of EUR 250 claimed in respect of the second period of the Cocoon report corresponds to the expenditure incurred for the audit certificate for the first period, that that amount was paid and that it was shown in the accounts. It is therefore eligible, unlike the amount corresponding to the costs incurred for the audit certificate for the second period, which was not recorded in the accounts. The same reasoning is applied to the Dicoems contract.
Likewise, point 5.4.3 of the final audit report (page 31 of that report) explains why certain direct costs connected with the project, duly substantiated and correctly entered in the applicant’s accounts, were accepted as eligible in the context of the Cocoon project even though they had not been claimed.
It should be noted that the audit states the grounds on which certain costs were considered eligible. The applicant does not demonstrate in a substantiated manner how that finding is inconsistent with the fact that certain other costs were classified as non-eligible. The applicant’s oral observations in that respect do not invalidate that conclusion.
It follows that the complaint alleging inconsistency in the final audit report must be rejected.
Finding in respect of the first plea
It follows from the foregoing that the first plea must be upheld in so far as it concerns the direct costs of personnel that must be considered eligible, in the amount of EUR 17 231.28 and as concerns the related indirect costs, resulting from the application of the contracts. It must be dismissed as to the remainder.
Second plea, alleging breach by the Commission of its monitoring obligations, of the principle of good faith and of the principle of fair cooperation in the implementation of the contracts
The applicant claims that there has been a breach of the Commission’s duty of vigilance and relies in that respect on certain contractual provisions. It claims that the conditions on immediate termination were not satisfied. In addition, it claims that there has been a breach of the principles of good faith and loyal cooperation of Belgian civil law. It also claims payment of fair compensation for the harm which it has sustained owing to the absence of monitoring.
First, the applicant refers to a number of provisions of the general conditions and claims that there was a breach of the Commission’s duty of vigilance during the execution phase of the Cocoon and Dicoems projects.
It should be observed that Article II.3(4)(a) of the general conditions provides that the Commission is to monitor the scientific, technological and financial execution of the project.
However, none of the applicant’s arguments shows that the Commission failed to fulfil one of its contractual supervisory obligations in the present case.
Article II.8 of the general conditions specifies that the Commission is to evaluate the reports which it receives within 45 days of receipt thereof. However, as regards management reports, and in particular the financial documents provided for in Article II.7(2)(b), Article II.8(3) provides that the absence of a response from the Commission within that period is not to imply that those documents are approved and is not to prevent the Commission from rejecting them, even after the time-limit for payment. In this case, the Commission’s failure to intervene during the execution phase of the projects is therefore not inconsistent with that contractual requirement.
Likewise, it is apparent from Article II.28(8) of the general conditions that the Commission may suspend its payments if the financial statements are not acceptable or in the event of irregularity, but no obligation is imposed on the Commission in that respect.
Accordingly, the applicant’s assertion that the Commission ought to have intervened more rapidly and asked the applicant to correct the accounting irregularities before the projects were completed and the audit carried out is not based on any contractual clause applicable in the present case.
In addition, as the Commission emphasises, the fact that it carried out an accounting and financial audit procedure, which enabled the irregularities at issue in the present case to be detected, shows that it complied with its monitoring obligation by applying Article II.29 of the general conditions, which provides that it may have audits carried out at any time and up to five years after the end of the project.
Last, the assertion that the Commission ought to have shown greater vigilance, since it was aware of the bankruptcy of the coordinator of the Dicoems project and of the existence of fraud, does not invalidate that conclusion and, moreover, must be rejected as bearing no relation to the irregularities committed by the applicant.
It follows that the complaint alleging breach of contractual provisions owing to lack of vigilance must be rejected.
Second, the applicant maintains that the immediate termination conditions in Article II.16(2) of the general conditions were not satisfied in this case. It submits that the Commission ought to have initiated the inter partes stage, provided for in Article II.16(1) of the general conditions, before terminating the contract. The Commission thus breached the contractual provisions and also the principle of contractual good faith and loyal cooperation.
It should be borne in mind that Article II.16(2) of the general conditions provides that the Commission may immediately terminate the participation of a contractor where it has deliberately or through negligence committed an irregularity in the performance of a contract (Article II.16(2)(a)) or where it has contravened the rules of conduct laid down in the Rules for Participation (Article II.16(2)(b)).
‘Irregularity’ is defined at Article II.1(11) of the general conditions as meaning ‘any infringement of a provision of Community law or any breach of a contractual obligation resulting from an act or omission by a contractor which has, or would have, the effect of prejudicing the general budget of the European Communities or budgets managed by [the European Communities] through unjustified expenditure’.
In the present case, as observed above in the context of the first plea, the applicant committed irregularities, identified in the final audit report, and it is established that those irregularities correspond to the definition in Article II.1(11) of the general conditions.
The audit pointed, in particular, to the absence of traceability in the applicant’s accounting system of certain costs claimed by the applicant, the absence of the original (or authenticated copies where they were permitted) of documents relating to the performance of the contracts, the fact that certain costs claimed by the applicant were not actual costs and did not correspond to the supporting documentation relating to the projects, the fact that the applicant, by signing the financial documentation sent to the Commission, certified circumstances not consistent with reality in relation to certain costs incurred and the supporting documents and the fact that the subcontracting agreements had been concluded in breach of the contractual provisions (point 1.4, pages 10 and 11, of the final audit report).
In addition, those breaches by the applicant of its contractual obligations, and in particular of Article II.19 et seq. of the general conditions, had an impact of the budget of the Union, since the European contribution to the budgets of the Cocoon and Dicoems projects is based on the eligibility of the expenditure declared by the contractor, in this instance by the applicant, and on compliance with its contractual obligations.
In addition, as the Commission emphasises, Article II.16(2) of the general conditions does not necessarily imply the existence of fraudulent intention on the applicant’s part in order for the contract to be terminated immediately.
Furthermore, contrary to the applicant’s assertion in the reply, the fact that the irregularities at issue could be identified only after an audit does not mean that those irregularities were unimportant. In any event, the definition of irregularities as set out in Article II.1(11) of the general conditions includes no threshold of gravity (
ELE.SI.A
v
Commission
, paragraph 139 above, paragraph 107). It is therefore not contradictory to consider that the irregularities committed in this case justified the immediate termination of the contract with respect to the applicant, in application of Article II.16(2) of the general conditions.
The conditions laid down in Article II.16(2) of the general conditions were therefore satisfied in the present case. The fact that certain sums rejected in the audit must be considered eligible (point 200 above) does not invalidate that conclusion.
Accordingly, by terminating the applicant’s participation without initiating the inter partes procedure provided for in Article II.16(1) of the general conditions, the Commission did not breach the applicable contractual provisions.
Third, the applicant claims that there has been a breach of the principles of good faith and faithful cooperation.
It should be borne in mind that the third paragraph of Article 1134 of the Belgian Civil Code provides that agreements must be performed in good faith and that Article 1135 of that code provides that ‘agreements are binding not only as to their express terms but also as to all the consequences which fairness, custom or the law attach to the obligation [assumed], according to its nature’.
However, first, the fact that the Commission did not make any comments on, or any criticism of, the applicant’s financial statements does not affect the obligations to which the applicant was subject under the contract (see, to that effect, Case
T-68/99
Toditec
v
Commission
[2001] ECR II-1443
, paragraph 98).
Second, as the Commission observes, although it did not engage in a dialogue with the applicant in order to correct the financial and accounting irregularities and although it did not draw the attention of the coordinator of each project or the applicant’s attention before the audit, that is to be explained by the fact that the financial and accounting audit procedure were necessary in order for the irregularities at issue to be detected.
In that regard, it follows from the findings of the final audit report, and in particular from the accounting irregularities identified (absence of traceability of the costs claimed by the applicant, inconsistency between the costs claimed and the documentation submitted, non-eligibility of certain costs wrongly declared to be eligible), that only a careful examination by means of accounting and financial audits could enable the irregularities at issue to be identified.
The arguments that the applicant raises in the reply, namely that the Commission was aware of the bankruptcy of the coordinator of the Dicoems project, which had been the subject of investigations, and of the existence of fraud, which meant that the Commission ought to have shown greater vigilance, do not invalidate that conclusion, particularly since, as observed at paragraph 209 above, those facts have no bearing on the irregularities at issue in this case, committed by the applicant. Likewise, contrary to the applicant’s assertion, the Commission’s duty of vigilance does not become devoid of purpose, even if the controls take place at the end of the programme, since such controls specifically enable the Commission to check whether the contractual obligations were fulfilled by the contractors.
Consequently, the complaint alleging breach of the principles of good faith and loyal cooperation must be rejected.
Fourth, the applicant maintains that the absence of monitoring on the Commission’s part caused it harm, since the sums were considered non-eligible although the irregularities could have been corrected before the closure of the audit if they had been disputed in time. The applicant claims fair compensation for the services provided in the context of the sixth framework programme. It relies, in the alternative, on undue enrichment.
When questioned at the hearing, the applicant stated that, by this claim, it remained within the contractual framework and that the argument based on undue enrichment was part of the fifth plea (paragraphs 281 to 290 below), which was noted in the minutes of the hearing.
It should be borne in mind that, in relation to contractual liability, Article 1142 of the Belgian Civil Code, which comes within Title III of Book III, entitled ‘Contracts or contractual obligations in general’, provides that ‘[a]ny obligation to do something or not to do something shall result in payment of damages where that obligation is not performed by the debtor’.
Furthermore, according to Article 1147 of the Belgian Civil Code, ‘[t]he debtor shall, where appropriate, be ordered to pay damages either for non-performance of the obligation or for a delay in performing it, whenever it is not shown that the reason for non-performance was not attributable to the debtor, and that there was no bad faith on his part’.
It follows that three conditions must be satisfied in order for damage of contractual origin to be compensated, namely non-performance of the contract, harm and a causal link between the non-performance and the harm.
In the present case, it is sufficient to observe that, as stated above, the Commission did not fail to fulfil either its duty to exercise vigilance, as provided for in the contractual provisions at issue, or the principle of good faith in the performance of the contract or of loyal cooperation, as claimed by the applicant paragraphs (201 to 227 above).
The first of those conditions is therefore not satisfied.
Furthermore, the applicant maintains that the projects were completed and that it provided services in respect of which costs were incurred. However, that argument must be rejected.
In so far as the applicant relies on contractual liability, it should be borne in mind that it is not sufficient to show that a project has been carried out in order for the grant of a specific subsidy to be justified. The beneficiary of the aid must, in addition, produce evidence that he has incurred the expenses declared in accordance with the conditions laid down for the grant of the aid concerned, with only those expenses which are properly justified being capable of being regarded as eligible. His obligation to satisfy the prescribed financial conditions is even one of his essential commitments and, accordingly, determines the allocation of EU financial aid (Case
T-500/04
Commission
v
IIC
[2007] ECR II-1443
, paragraph 94, and judgment of 17 October 2012 in Case T‑220/10
Commission
v
EU Research Projects
, not published in the ECR, paragraph 29).
In this case, as stated previously, the applicant did not comply with all the financial and financing obligations imposed on it (paragraph 200 above).
The claim for contractual damages must therefore be rejected.
In so far as the applicant relies on undue enrichment, the Court refers to the reasoning set out in the context of the first part of the fifth plea (paragraphs 281 to 290 below).
Last, as regards the arguments seeking annulment of the debit note, they must be rejected as being put forward in support of an inadmissible head of claim (paragraph 75 above).
In the light of all of the foregoing, the second plea must be rejected in its entirety.
Third plea, alleging breach by the Commission of the principles of sound administration and proportionality
The applicant puts forward two complaints in support of this plea, one alleging breach of the principle of sound administration and the other breach of the principle of proportionality.
The applicant stated that this plea was submitted in support of the third and fourth heads of claim. In so far as this plea seeks annulment of the debit note, it must be rejected on the ground that it is put forward in support of an inadmissible head of claim (paragraph 75 above). It will therefore be examined below in so far as it is raised in support of the third head of claim, seeking to challenge the decision to cancel the contracts at issue, and the fourth head of claim, in so far as it seeks to challenge the Commission’s demand for reimbursement.
– The complaint alleging breach of the principle of sound administration
The applicant refers to the Commission’s obligation to examine the relevant elements carefully, impartially and diligently. First, it complains of the lack of monitoring on the Commission’s part during the implementation stage of the contracts. It emphasises in that regard the Commission’s tacit acceptance of the implementation stage of the contracts in spite of its requests that the Commission’s officials should intervene when certain irregularities were committed by the coordinator of one of the two projects at issue and in spite of the applicant’s letters to the Commission. Likewise, it maintains that, following the insolvency of the coordinator of the Dicoems project, that project continued for 18 months without a coordinator. Second, the applicant complains of the lack of meetings before the final audit report. Second, it submits that the documents produced on 19 August 2009 were not taken into account.
It should be borne in mind that the EU institutions are subject to obligations flowing from the general principle of sound administration in regard to the public only in the exercise of their administrative responsibilities. On the other hand, when the relationship between the Commission and the applicant is clearly contractual, the latter can complain, in regard to the Commission, only of breaches of the terms of the contract or of the law applicable to it (judgment of 3 June 2009 in Case T‑179/06
Commission
v
Burie Onderzoek en advies
, not published in the ECR, paragraph 118, and order of 8 February 2010 in Case
T-481/08
Alisei
v
Commission
[2010] ECR II-117
, paragraphs 95 and 96).
In this case, the contractual nature of the present dispute is not open to doubt and is acknowledged by the applicant itself.
Its arguments that the Commission had special functions and special powers in the performance of the contracts at issue must therefore be rejected.
In that regard, the applicant refers to Decision No 1513/2002. That decision provides, in Article 6(1), that ‘[t]he Commission shall continually and systematically monitor, with the help of independent qualified experts, the implementation of the sixth framework programme and its specific objectives’. In Annex III, section 2 also provides that ‘[t]he Commission will carry out the research activities in such a way as to ensure the protection of the Community’s financial interests by means of effective controls and, if irregularities are detected, by means of dissuasive and proportionate penalties’.
Likewise, in the context of its answer to a written question from the Court, the applicant refers to the Commission’s power to carry out audits, its power to terminate the contract unilaterally and its power to recover the disputed sums by means of a debit note. The Commission thus alleges the existence of prerogatives flowing from the Commission’s administrative powers.
However, the matters to which the applicant refers do not in any way detract from the contractual nature of the present dispute and from the fact that, in this case, the Commission acted in application of the contracts at issue, without exercising the public prerogatives which are conferred on it when it acts in its capacity as an administrative authority (see also, to that effect, order of 31 March 2011 in Case C‑433/10 P
Mauerhofer
v
Commission
, not published in the ECR, paragraph 83, and order of 10 April 2008 in Case T‑97/07
Imelios
v
Commission
, not published in the ECR, paragraph 28).
Therefore the Commission can criticise the Commission only with regard to breach of the terms of the contract or breach of the law applicable to the contract.
In the present case, in support of its complaint alleging breach of the principle of sound administration, the applicant relies on shortcomings relating to the lack of monitoring during the implementation stage of the contracts and the lack of meetings before the final audit report. However, even on the assumption that they were made out, such shortcomings would have no impact on the obligations borne by the applicant under the contracts at issue or on the termination of those contracts in the present case (see, to that effect and by analogy, judgment of 13 June 2012 in Case T‑246/09
Insula
v
Commission
, not published in the ECR, paragraph 274).
Consequently, those arguments must be considered ineffective in the present context.
Furthermore, and in any event, in so far as the applicant relies on a breach of the principle of sound administration with a view to having the termination of the contracts at issue declared illegal (third head of claim), it should be borne in mind that, as stated previously, that termination was consistent with the applicable contractual provisions and also with the principles of good faith and loyal cooperation (paragraphs 211 to 227 above). The arguments which the applicant raises in support of the present claim cannot invalidate those findings.
In addition, the argument based on the failure to take the documents produced on 19 August 2009 into account must also be rejected. First, those documents were taken into account by the Commission (paragraph 110 above). Second, the applicant has failed to show how the Commission’s alleged deficiencies in that regard should have different consequences from those already found in the context of the first plea (paragraph 200 above).
Last, in so far as the applicant relies on a breach of the principle of sound administration in order to have the Commission’s claim for reimbursement declared unfounded (fourth head of claim), it should be observed that the applicant has failed to establish how the Commission’s alleged shortcomings in that regard should have different consequences from those already found in the context of the first plea (paragraph 200 above).
It follows from all of the foregoing that the complaint alleging breach of the principle of sound administration must be rejected.
– The complaint alleging breach of the principle of proportionality
The applicant maintains that the measures taken by the Commission and, in particular, the decision to terminate the contract immediately breach the principle of proportionality since the irregularities were of a purely accounting nature.
It should be borne in mind that the principle of proportionality, laid down in Article 5 TEU, is intended to regulate all the Union’s means of action, whether contractual or non-contractual (see, to that effect and by analogy, Case
T-154/01
Distilleria Palma
v
Council
[2004] ECR II-1493
, paragraph 44). That principle requires that the measures adopted by the EU institutions do not exceed what is appropriate and necessary for attaining the objective pursued (see, by analogy, Case
15/83
Denkavit Nederland
[1984] ECR 2171
, paragraph 25, and Case
T-216/96
Conserve Italia
v
Commission
[1999] ECR II-3139
, paragraph 101).
In the present case, it is apparent from the final audit report that the irregularities of which the applicant is accused were many and varied. In particular, the final audit report noted an absence of traceability in the accounting for the costs claimed by the applicant and also an absence of the originals (or authenticated copies, where they were acceptable) of the documents relating to the performance of the contracts. That report also observed that certain costs claimed were not actual costs and did not correspond with the supporting documentation relating to the projects. It was further noted that, in signing the financial documentation sent to the Commission, the applicant had certified facts not complying with reality as regards the costs incurred and the associated documentation. It was also found that subcontracting agreements had been concluded in breach of the contractual provisions.
Those findings of the final audit report were considered incorrect in the context of the first plea in so far as they related to some of the direct costs of personnel, which had to be considered eligible in the amount of EUR 17 231.28, and with respect to the associated indirect costs, arising from the application of the contracts (paragraph 200 above).
However, the fact none the less remains that the findings of the final audit report remain well founded as to the remainder.
It must be recalled that the Commission’s obligation to ensure the sound financial management of the Union’s resources, in accordance with Article 317 TFEU, and the need to combat fraud in connection with Union financing endow the obligations relating to financial conditions with fundamental importance (see, by analogy, Joined Cases
T-428/07 and T-455/07
CEVA
v
Commission
[2010] ECR II-2431
, paragraph 126 and the case‑law cited). In this instance, the applicant’s obligation to comply with its obligations, in particular with respect to the traceability of costs and the production of supporting documents in relation to the costs incurred, is therefore one of its essential commitments, designed to enable the Commission to have at its disposal the data necessary to ascertain whether the contributions at issue were applied in accordance with the requirements of the contracts.
It follows that the Commission was correct to consider that the applicant had committed serious irregularities capable of prejudicing the financial interests of the Union, within the meaning of Article II.1(11) of the general conditions, in performing the Dicoems and Cocoon contracts.
It follows that the measures taken by the Commission, and, in particular, the decision to terminate the contract immediately, in application of Article II.16(2) of the general conditions, which, moreover, constitutes the application of the relevant contractual provisions, as stated above (paragraphs 211 to 220 above), do not breach the principle of proportionality.
This complaint must therefore be rejected.
The third plea must therefore be rejected in its entirety.
Fourth plea, alleging breach of the rights of the defence and failure to state reasons
The applicant claims that there has been a breach of the rights of the defence and, in the reply, that there has been a failure to state reasons. It stated, in answer to a written question, that this plea was intended to support the third and fourth heads of claim. In so far as this plea seeks annulment of the debit note, it must be rejected as being put forward in support of an inadmissible head of claim (paragraph 75 above).
– The complaint alleging breach of the rights of the defence
The applicant maintains, in the first place, that it was not given a proper opportunity to put forward its point of view during the audit or following the draft audit report and, in the second place, that the meetings of 3 December 2009 and 1 July 2010 concerning the final audit report took place without the officials who had carried out the audit being present.
It should be observed, first of all, that the applicant does not allege a breach of any specific requirement of the contracts at issue or of any provision of the law applicable to those contracts.
Next, even on the assumption that it might be considered that the law applicable to the contract implied the existence of contractual obligations on the Commission’s part in that regard, the applicant has not established how the consequences would be different from those already found previously (paragraph 200 above).
Last, in any event, it follows from the circumstances of the present case that this complaint is not well founded. It is apparent from the documents in the file referred to above (paragraphs 38 to 46 above) that the applicant was able properly to put forward its point of view following the draft audit report and in particular by letter of 19 August 2009, which, contrary to the applicant’s assertion, was taken into account by the Commission in the context of the final audit report (paragraph 110 above). The mere fact that the applicant’s claims were not met in full does not mean that those documents were not examined by the Commission. In addition, after the final audit report, there were further exchanges between the Commission and the applicant (paragraphs 47 to 59 above).
This complaint must therefore be rejected.
– The complaint alleging breach of the obligation to state reasons
The applicant claims, in the reply, that the Commission did not state the reasons for failing to take the supplementary documents into account and did not state why the amounts which it did take into account were different from those taken from the applicant’s accounts.
Without there being any need to adjudicate on the admissibility of this complaint raised in the reply, it is sufficient to observe that that obligation is imposed on the Commission by virtue of Article 296 TFEU. However, it applies only to unilateral means of action by the Commission and therefore does not apply to the Commission by virtue of the contract between it and the applicant. Accordingly, that obligation could, if appropriate, render the Community only non-contractually liable (see, to that effect,
Distilleria Palma
v
Commission
, paragraph 259 above, paragraph 46). It is not apparent from either the application or the applicant’s answers to the questions put by the Court that it intended to raise the non-contractual liability of the Union in that respect.
Furthermore, and in any event, the applicant has not established how the consequences of such a breach would be different from those already found in the context of the first plea (paragraph 200 above).
This complaint and, accordingly, the present plea in its entirety must therefore be rejected.
Conclusion with respect to the principal claim
In the light of all of the foregoing, the principal claim must be upheld in part. It is thus found that the costs eligible for reimbursement by the Commission, within the meaning of the contracts at issue, also include the direct costs of personnel in the amount of EUR 17 231.28 and also the associated indirect costs, arising from the application of the contracts.
The principal claim must therefore be rejected as to the remainder, without there being any need to order a supplementary expert report, as suggested by the applicant at the hearing.
3.
The alternative claim, based on the fifth plea
The applicant raises a fifth plea, in support of its alternative claim that the Commission should be ordered to pay it damages for the harm allegedly sustained. This plea seeks to have the Commission held liable, first, for undue enrichment and, second, on the ground of a wrongful act.
First part, alleging undue enrichment
In the context of the first part of the present plea, the applicant maintains that the Commission benefited from the scientific results of the projects at issue and, in the light of the termination of the contracts, the applicant alleges undue enrichment.
It should be borne in mind that an action based on undue enrichment, as provided for in the majority of national legal systems, is not necessarily conditional upon unlawfulness or fault in the defendant’s conduct. On the other hand, in order for such an action to be upheld, it is essential that there be no valid legal basis for the enrichment. That condition is not satisfied, in particular, where the enrichment derives from contractual obligations (Case
C-47/07 P
Masdar (UK)
v
Commission
[2008] ECR I-9761
, paragraphs 45 and 46).
In the present case, as the Commission contends, the alleged advantage which it obtained had its basis in the contractual relationship between the parties.
It follows that any enrichment of the Commission or impoverishment of the applicant cannot be characterised as unfounded, since they have their origin in the contractual framework in place.
Nor does the fact that the contracts at issue were terminated by letter from the Commission dated 5 November 2010, as the applicant emphasises, alter that conclusion.
The subject-matter of the present complaint consists, in reality, in a claim for damages of a contractual origin, notwithstanding the termination of the contract. Furthermore, it is apparent from the contracts at issue that certain contractual requirements continue to apply vis-à-vis a participant even after the contract has been terminated, and in particular Articles II.29, II.30 and II.31, concerning the audit, damages and compensation and the recovery of amounts unduly paid.
Last, and in any event, the applicant cannot properly claim that the Commission was enriched as a consequence of those contracts.
Pursuant to Article II.27 of the general conditions, in application of the Financial Regulation, pre-financing granted to the coordinator on behalf of the consortium is to remain the property of the Union.
In addition, it follows from the very words of Article II.32 of the general conditions, read with Article II.1(14) of those general conditions, that the results of the projects at issue and also the rights attaching to them are to be the property of the Commission’s contractors that have contributed to achieving those results (see also, to that effect,
Insula
v
Commission
, paragraph 252 above, paragraph 264).
The first part of the fifth plea must therefore be rejected.
Second part, alleging liability for a wrongful act on the part of the Commission
The applicant maintains that, in the context of a different project funded by the Union (Pasodoble), the Commission, through the head of unit of the Research Executive Agency (REA), sent on 16 April 2010, or immediately after the inspections, a letter to the coordinator of that other project, warning him about the applicant’s operational capacity and recommending that only a part of the pre-financing should be distributed to the applicant. The applicant maintains that that letter constitutes a wrongful act on the part of the Commission, of which the REA is a dependant, that entailed economic and non-material damage.
It should be borne in mind that 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
) confers on the Commission power to create executives and to entrust to them certain tasks relating to the management of a number of Community programmes. Although the Commission continues to perform tasks requiring discretionary powers in translating political choices into action, the agency may be entrusted with managing the phases of the project, adopting the instruments of budget implementation and, on the basis of the power delegated by the Commission, carrying out the activities required to implement a Community programme, and in particular activities linked to the awarding of contracts and grants (Article 6(1) and (2) of Regulation No 58/2003).
In addition, Article 4(2) of Regulation No 58/2003 provides that an executive agency is to have legal personality. It follows from Article 21 of that regulation that the contractual liability of the agency is to be governed by the law applicable to the contract and that, in the case of non-contractual liability, the agency is to make good any damage caused by it or its servants, in accordance with the general principles common to the laws of the Member States. The Court of Justice of the European Union is to have jurisdiction in disputes relating to compensation for any such damage. Furthermore, under Article 22 of that regulation, any act of an executive agency which injures a third party may be referred to the Commission by any person directly or individually concerned or by a Member State for a review of its legality. Administrative proceedings are to be referred to the Commission, against whose decision an action for annulment may be brought before the Court of Justice.
In application of Regulation No 58/2003, the Commission set up the REA by Decision 2008/46/EC of 14 December 2007 setting up the ‘Research Executive Agency’ for the management of certain areas of the specific Community programmes People, Capacities and Cooperation in the field of research (
OJ 2008 L 11, p. 9
).
Article 1 of Decision 2008/46 provides that the statute of the REA is to be governed by Regulation No 58/2003.
It follows that the REA has legal personality. Likewise, it follows from Decision 2008/46 in conjunction with Article 21 of Regulation No 58/2003 that, in the case of non-contractual liability, the REA must make good any damage caused by it or its servants in the performance of their duties.
Furthermore, it follows from Decision 2008/46 that the REA is to be entrusted, in particular, with the tasks of management of phases of specific projects in the context of implementing certain areas of the People, Capacities and Cooperation programmes, the management of the work programme adopted by the Commission and the necessary checks to that end. It is also entrusted with the adoption of the instruments of budget execution for revenue and expenditure and carrying out the operations necessary for the management of the programmes concerned, in particular those linked to the award of grants and contracts (Article 4(1) of Decision 2008/46).
In the present case, the applicant maintains that the letter sent by the head of unit of the REA to the coordinator of a different project renders the Commission liable.
However, it must be pointed out that that letter of 16 April 2010 has the letterhead of the REA and is signed by the head of unit of the REA, which has legal personality. Nor is it disputed that that letter falls within the competences of the REA, which performs management and budget execution tasks, and in particular those linked to the award of grants and contracts. Last, in non-contractual liability matters, the REA is required to make good any damage caused by it or its servants in the performance of their duties (paragraph 296 above).
It follows from the foregoing that, contrary to the applicant’s assertion, that letter cannot be considered to have been sent by the Commission or to be imputable to it (see, to that effect and by analogy, order of 10 November 2011 in Case C‑626/10 P
Agapiou Joséphidès
v
Commission and EACEA
, not published in the ECR, paragraphs 27 to 30 and 52 to 55, and Case
T-411/06
Sogelma
v
EAR
[2008] ECR II-2771
, paragraphs 50 to 57).
That conclusion is not invalidated by the applicant’s — unsubstantiated — assertion that the facts set out in that letter were ‘clearly’ suggested by the Commission’s officials. Even though the REA had been informed by the Commission of the results of the audit, the letter of 16 April 2010 is none the less the sole responsibility of the REA.
Therefore the letter at issue, imputable to the REA, is not such as to render the Commission liable and the second part of the present plea, directed against the Commission, is inadmissible.
In any event, even if the letter at issue were imputable to the Commission, it should be borne in mind that the non-contractual liability of the Union and the exercise of the right to compensation for damage suffered, pursuant to the second paragraph of Article 340 TFEU, depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see, in particular, by analogy, Case
26/81
Oleifici Mediterranei
v
EEC
[1982] ECR 3057
, paragraph 16, and Joined Cases
C-120/06 P and C-121/06 P
FIAMM and Others
v
Council and Commission
[2008] ECR I-6513
, paragraph 106). In so far as those three conditions must be satisfied cumulatively, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages (see Case
C-419/08 P
Trubowest Handel and Makarov
v
Council and Commission
[2010] ECR I-2259
, paragraph 41).
In the present case, it is sufficient to observe that the applicant has not shown that the letter of 16 April 2010 is vitiated by a wrongful illegality. The author of that letter states that her doubts about the applicant’s operational capacity to perform its tasks in the project had recently been confirmed by the findings of an ex post audit conducted by the Commission. In that context, the author of the letter recommends that the coordinator should distribute to the applicant only a part of the pre-financing, while the remaining part should be released only after it has started, in a ‘satisfying manner’, its activities as envisaged in the Description of Work. In addition, the author of the letter reserves the right to proceed to an on-the-spot control of the applicant at any time to ensure that the costs occurred by it are identifiable and eligible.
In so doing, the author of the letter remains within the framework of her budget management tasks and the applicant has not established that she breached a legal rule or committed any irregularity. Furthermore, contrary to the applicant’s assertion, the content of that letter does not appear to be defamatory, since, notwithstanding the fact that part of the costs of personnel was wrongly considered to be non-eligible, the final audit report correctly concludes that there were irregularities that justified the termination of the Cocoon and Dicoems contracts.
It follows that the second part of the present plea is in any event unfounded.
The fifth plea must therefore be rejected without there being any need to adjudicate on the applicant’s request that the Commission should produce documents that would permit an evaluation of the damage that the applicant allegedly sustained as a result of the sending of the letter.
Conclusion with respect to the alternative claim
In the light of the foregoing, the alternative plea must therefore be rejected.
4.
The Commission’s counterclaim
The Commission contends that in terminating the Dicoems and Cocoon contracts and issuing the debit note it fully complied with the applicable contractual provisions. In the rejoinder, first, it submits a counterclaim, requesting that the applicant should be ordered to pay it the sum of EUR 164 080.03 stated in the debit note, plus default interest as provided for in Article II.31(2) of the general conditions. Second, it requests that the Court should confirm the end of the applicant’s participation in the Dicoems and Cocoon projects referred to in the letter of 5 November 2010.
It should be borne in mind that, where proceedings have been instituted pursuant to an arbitration clause, the Court must resolve the dispute on the basis of the substantive rules of the national law applicable to the contract (Case
426/85
Commission
v
Zoubek
[1986] ECR 4057
, paragraph 4), namely, in this case, Belgian law, which governs the contracts at issue pursuant to Article 12 of each of the two contracts.
On the other hand, according to the generally accepted principle of law that every court applies its own rules of procedure, jurisdiction and the admissibility of the heads of claim must be assessed solely on the basis of Union law (see, to that effect,
Commission
v
Zoubek
, paragraph 310 above, paragraph 10, and judgment of 13 June 2012 in Case T‑110/10
Insula
v
Commission
, not published in the ECR, paragraphs 29 and 30).
In this case, the Commission’s counterclaim is submitted in the rejoinder.
However, it should be borne in mind that Article 48 of the Rules of Procedure prohibits the introduction of new pleas in law in the course of proceedings.
Furthermore, it follows from the case‑law that, while Article 48(2) of the Rules of Procedure authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, that provision cannot in any circumstances be interpreted as authorising a party to modify the actual subject-matter of the dispute in the course of proceedings (see, to that effect and by analogy, Case
278/85
Commission
v
Denmark
[1987] ECR 4069
, paragraphs 37 and 38, and Case
T-28/90
Asia Motor France and Others
v
Commission
[1992] ECR II-2285
, paragraph 43).
Article 48 of the Rules of Procedure makes no distinction in that regard between the applicant and the defendant.
In addition, the Court of Justice has had occasion, on the basis of the provision in its Rules of Procedure that prohibits the introduction of new pleas in the course of proceedings, to consider inadmissible an objection of inadmissibility or a plea that was raised for the first time in the rejoinder and was not based on matters of law or of fact which had come to light in the course of the procedure (Case
C-471/98
Commission
v
Belgium
[2002] ECR I-9681
, paragraphs 42 and 43, and Case
C-519/03
Commission
v
Luxembourg
[2005] ECR I-3067
, paragraphs 22 and 23).
In the present case, the counterclaim submitted in the rejoinder is new by comparison with the form of order sought in the Commission’s defence. The counterclaim seeks, first, that the applicant should be ordered to pay the Commission the sum of EUR 164 080.03 indicated in the debit note, plus default interest, and, second, that the Court should confirm the end of the applicant’s participation in the Dicoems and Cocoon projects.
Although the end of the applicant’s participation in the contracts is confirmed
ipso facto
by the outcome of the present action, the claim for repayment plus default interest constitutes, at the stage of the rejoinder, an additional head of claim by comparison with those set out in the defence. In addition, as the Commission stated at the hearing, that counterclaim adds to the defence a claim for an enforceable order.
Therefore, the counterclaim, in that it includes a claim for payment plus default interest, may be considered to be a new form of order, which modifies, by extending it, the subject-matter of the form of order sought in the defence.
When questioned by the Court, the Commission claimed that, in the system of legal remedies in EU law, jurisdiction to adjudicate on a main action entails jurisdiction to adjudicate on any counterclaim introduced in the course of the same proceedings that derives from the same act or the same fact that constitutes the subject-matter of the application (order of 27 May 2004 in Case C‑517/03
Commission
v
IAMA Consulting
, not published in the ECR, paragraph 17). However, the Court’s jurisdiction to adjudicate on the Commission’s counterclaim is not at issue in this case. That argument does not invalidate the conclusion that the counterclaim in this case is a new form of order which extends the subject-matter of the form of order sought in the defence.
Furthermore, contrary to the Commission’s contention, the principles of respect for adversarial proceedings and the rights of the defence mean that such a claim must be set out in the defence, even where, as in this case, the counterclaim renews the claim for payment contained in the debit note.
Such a request must therefore be considered to be out of time and therefore inadmissible within the meaning of Article 48 of the Rules of Procedure.
Last, it should be further observed that such a delay does not preclude the Commission from recovering the sums at issue, pursuant to Article 299 TFEU, which provides that acts which impose a pecuniary obligation on persons other than States are to be enforceable. As, moreover, is provided for in Article II.31(5) of the general conditions, the Commission could still adopt a decision that would be enforceable within the meaning of that provision, on the basis of the first subparagraph of Article 79(2) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Regulation No 1605/2002 (
OJ 2012 L 298, p. 1
) (see, to that effect, and by analogy, Case T‑246/09
Insula
v
Commission
, paragraph 252 above, paragraphs 95 to 99), the exequatur then being placed on it by the competent national authority.
It follows that the Commission’s counterclaim is inadmissible.
Costs
Under Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs where, as in the present case, each party succeeds on some and fails on other heads.
In the circumstances of the present case, the Court decides that each party is to bear its own costs, including those relating to the interlocutory proceedings in Case T‑116/11 R.

On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:

1.
Allows the action of the European Medical Association (EMA) in so far as it seeks reimbursement of the direct costs of personnel assigned to the Cocoon and Dicoems contracts for an amount of EUR 17 231.28, and also the associated indirect costs arising from the application of those contracts;

2.
Dismisses EMA’s action as to the remainder;

3.
Dismisses the European Commission’s counterclaim;

4.
Orders the parties to bear their own costs, including those relating to the interlocutory proceedings in Case T‑116/11 R.

Forwood
Dehousse
Schwarcz
Delivered in open court in Luxembourg on 11 December 2013.
[Signatures]
Table of contents

Legal context

1. Contractual framework

2. Belgian law

Background to the dispute

Procedure and forms of order sought

Law

1. Preliminary observations

2. The principal claim, based on the first four pleas

The first plea, alleging breach of Articles II.19, II.20, II.21 and II.25 of the general conditions

The claim for payment concerning the fourth period

The complaint relating to the absence of a choice of costs model

The complaint relating to the non-eligibility of costs invoiced but not yet paid

The complaint relating to direct costs of personnel

– The costs of personnel claimed in the context of the Cocoon contract

– The costs of personnel claimed in the context of the Dicoems contract

The complaint relating to the indirect costs

The complaint alleging inconsistency in the final audit report

Finding in respect of the first plea

Second plea, alleging breach by the Commission of its monitoring obligations, of the principle of good faith and of the principle of fair cooperation in the implementation of the contracts

Third plea, alleging breach by the Commission of the principles of sound administration and proportionality

– The complaint alleging breach of the principle of sound administration

– The complaint alleging breach of the principle of proportionality

Fourth plea, alleging breach of the rights of the defence and failure to state reasons

– The complaint alleging breach of the rights of the defence

– The complaint alleging breach of the obligation to state reasons

Conclusion with respect to the principal claim

3. The alternative claim, based on the fifth plea

First part, alleging undue enrichment

Second part, alleging liability for a wrongful act on the part of the Commission

Conclusion with respect to the alternative claim

4. The Commission’s counterclaim

Costs
(
*1
)	Language of the case: Italian.