# 62016TO0348

ORDER OF THE PRESIDENT OF THE GENERAL COURT

13 July 2017 (
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  )

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(Application for interim measures — Arbitration clause — Judgment by default — Application for a stay of execution of the judgment — Lack of jurisdiction)

In Case T‐348/16 OP-R,

Aristoteleio Panepistimio Thessalonikis, established in Thessaloniki (Greece), represented by V. Christianos, lawyer,

Aristoteleio Panepistimio Thessalonikis

applicant in the main proceedings,

v

European Research Council Executive Agency (ERCEA), represented by M. Pesquera Alonso and F. Sgritta, acting as Agents, and by E. Kourakis, lawyer,

European Research Council Executive Agency (ERCEA)

defendant in the main proceedings,

APPLICATION under Articles 123(4) and 156 of the Rules of Procedure of the General Court seeking a stay of execution of the judgment of 6 April 2017, Aristoteleio Panepistimio Thessalonikis v ERCEA (T‐348/16, not published, EU:T:2017:268),

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Order

Background to the dispute, procedure and forms of order sought by the parties

Background to the dispute, procedure and forms of order sought by the parties

| 1 | By application lodged at the Registry of the General Court on 27 June 2016, Aristoteleio Panepistimio Thessalonikis brought an action under Article 272 TFEU. On 28 October 2016, that is to say, two days after the expiry of the prescribed period, the European Research Council Executive Agency (‘ERCEA’) lodged its statement in defence. The General Court, finding that ERCEA had failed to respond to the application within the period set out in Article 81 of the Rules of Procedure of the General Court, decided in favour of Aristoteleio Panepistimio Thessalonikis, in accordance with Article 123(3) of the Rules of Procedure, by judgment of 6 April 2017, Aristoteleio Panepistimio Thessalonikis v ERCEA (T‐348/16, not published, EU:T:2017:268) (‘the judgment by default’). |
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1

By application lodged at the Registry of the General Court on 27 June 2016, Aristoteleio Panepistimio Thessalonikis brought an action under Article 272 TFEU. On 28 October 2016, that is to say, two days after the expiry of the prescribed period, the European Research Council Executive Agency (‘ERCEA’) lodged its statement in defence. The General Court, finding that ERCEA had failed to respond to the application within the period set out in Article 81 of the Rules of Procedure of the General Court, decided in favour of Aristoteleio Panepistimio Thessalonikis, in accordance with Article 123(3) of the Rules of Procedure, by judgment of 6 April 2017, Aristoteleio Panepistimio Thessalonikis v ERCEA (T‐348/16, not published, EU:T:2017:268) (‘the judgment by default’).

| 2 | By application lodged at the Court Registry on 5 May 2017, ERCEA sought to have the judgment by default set aside under Article 166(1) of the Rules of Procedure and Article 41 of the Statute of the Court of Justice of the European Union. |
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2

By application lodged at the Court Registry on 5 May 2017, ERCEA sought to have the judgment by default set aside under Article 166(1) of the Rules of Procedure and Article 41 of the Statute of the Court of Justice of the European Union.

| 3 | By a separate document lodged at the Court Registry on the same day, ERCEA brought the present application, by which it seeks, in essence, a stay of execution of the judgment by default pending the decision of the General Court on its application to have that judgment set aside. |
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3

By a separate document lodged at the Court Registry on the same day, ERCEA brought the present application, by which it seeks, in essence, a stay of execution of the judgment by default pending the decision of the General Court on its application to have that judgment set aside.

| 4 | In its observations on the application for interim measures, lodged at the Court Registry on 1 June 2017, Aristoteleio Panepistimio Thessalonikis contends that the President of the General Court should:





  – | dismiss the application for a stay of execution brought by ERCEA as manifestly unfounded under the combined provisions of Articles 126 and 130 of the Rules of Procedure and, in any event, as inadmissible under the combined provisions of Articles 129 and 130 of the Rules of Procedure; |
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4

In its observations on the application for interim measures, lodged at the Court Registry on 1 June 2017, Aristoteleio Panepistimio Thessalonikis contends that the President of the General Court should:

–

dismiss the application for a stay of execution brought by ERCEA as manifestly unfounded under the combined provisions of Articles 126 and 130 of the Rules of Procedure and, in any event, as inadmissible under the combined provisions of Articles 129 and 130 of the Rules of Procedure;

| – | order ERCEA to pay the costs. |
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–

order ERCEA to pay the costs.

Law

Law

| 5 | Having regard to the material in the case file, the President of the General Court considers that he has all the information necessary to rule on the present application without there being any need first to hear oral argument from the parties. In the circumstances of the present case, it is appropriate to examine at the outset whether the President of the General Court has jurisdiction to rule on the present application. |
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5

Having regard to the material in the case file, the President of the General Court considers that he has all the information necessary to rule on the present application without there being any need first to hear oral argument from the parties. In the circumstances of the present case, it is appropriate to examine at the outset whether the President of the General Court has jurisdiction to rule on the present application.

| 6 | In support of its application for a stay of execution of the judgment by default, ERCEA invokes Article 41 of the Statute of the Court of Justice of the European Union and Articles 76, 123(4) and 156 of the Rules of Procedure. |
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6

In support of its application for a stay of execution of the judgment by default, ERCEA invokes Article 41 of the Statute of the Court of Justice of the European Union and Articles 76, 123(4) and 156 of the Rules of Procedure.

| 7 | Aristoteleio Panepistimio Thessalonikis claims, in essence, that the application for interim measures is manifestly inadmissible. First, it submits, the execution of the judgment by default cannot be stayed in view of the fact that its operative part is merely declaratory, and not enforceable. Second, it submits, ERCEA does not have any legal interest, given that the application is premature inasmuch as execution of the judgment by default is not imminent. |
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7

Aristoteleio Panepistimio Thessalonikis claims, in essence, that the application for interim measures is manifestly inadmissible. First, it submits, the execution of the judgment by default cannot be stayed in view of the fact that its operative part is merely declaratory, and not enforceable. Second, it submits, ERCEA does not have any legal interest, given that the application is premature inasmuch as execution of the judgment by default is not imminent.

| 8 | Without there being any need to examine those pleas of inadmissibility, it must be held that, pursuant to Article 41 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, the objection is not to have the effect of staying enforcement of the judgment by default unless the General Court decides otherwise. |
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8

Without there being any need to examine those pleas of inadmissibility, it must be held that, pursuant to Article 41 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, the objection is not to have the effect of staying enforcement of the judgment by default unless the General Court decides otherwise.

| 9 | On the other hand, Article 123(4) of the Rules of Procedure provides that, where the judgment by default is enforceable, the General Court may, however, grant a stay of execution until it has given its decision on any application under Article 166 of those rules to have that judgment set aside. |
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9

On the other hand, Article 123(4) of the Rules of Procedure provides that, where the judgment by default is enforceable, the General Court may, however, grant a stay of execution until it has given its decision on any application under Article 166 of those rules to have that judgment set aside.

| 10 | For the purposes of application of the Rules of Procedure, in accordance with Article 1(2)(a) thereof, the term ‘General Court’ means, in cases assigned or referred to a Chamber, that Chamber. |
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10

For the purposes of application of the Rules of Procedure, in accordance with Article 1(2)(a) thereof, the term ‘General Court’ means, in cases assigned or referred to a Chamber, that Chamber.

| 11 | It follows that the stay of execution of the judgment by default is the subject of specific provisions expressly conferring that jurisdiction on the General Court rather than on the President of the General Court in his capacity as the judge hearing the application for interim measures. |
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11

It follows that the stay of execution of the judgment by default is the subject of specific provisions expressly conferring that jurisdiction on the General Court rather than on the President of the General Court in his capacity as the judge hearing the application for interim measures.

| 12 | It must be noted, moreover, that, conversely, so far as concerns third-party proceedings, Article 167 of the Rules of Procedure expressly provides that a stay of execution of the contested judgment or order may be ordered, on application by the third party, pursuant to the provisions of Articles 156 to 161 of the Rules of Procedure, thereby conferring that jurisdiction on the President of the General Court in his capacity as the judge hearing the application for interim measures, in accordance with the Statute of the Court of Justice of the European Union. Article 42 of the Statute of the Court of Justice of the European Union does not specify, with regard to third-party proceedings, the formation of the Court that has jurisdiction to order the stay of execution of the judgment, but merely refers, in general terms, to the cases and conditions to be determined by the Rules of Procedure, in contrast to Article 41 of the Statute of the Court of Justice of the European Union in respect of an application to have a judgment set aside. |
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12

It must be noted, moreover, that, conversely, so far as concerns third-party proceedings, Article 167 of the Rules of Procedure expressly provides that a stay of execution of the contested judgment or order may be ordered, on application by the third party, pursuant to the provisions of Articles 156 to 161 of the Rules of Procedure, thereby conferring that jurisdiction on the President of the General Court in his capacity as the judge hearing the application for interim measures, in accordance with the Statute of the Court of Justice of the European Union. Article 42 of the Statute of the Court of Justice of the European Union does not specify, with regard to third-party proceedings, the formation of the Court that has jurisdiction to order the stay of execution of the judgment, but merely refers, in general terms, to the cases and conditions to be determined by the Rules of Procedure, in contrast to Article 41 of the Statute of the Court of Justice of the European Union in respect of an application to have a judgment set aside.

| 13 | It is thus apparent from the wording and scheme of both the Statute of the Court of Justice of the European Union and the Rules of Procedure that the President of the General Court does not have jurisdiction to rule on the present application, which must therefore be dismissed. |
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13

It is thus apparent from the wording and scheme of both the Statute of the Court of Justice of the European Union and the Rules of Procedure that the President of the General Court does not have jurisdiction to rule on the present application, which must therefore be dismissed.

| 14 | In accordance with Article 158(5) of the Rules of Procedure, the costs are to be reserved. |
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14

In accordance with Article 158(5) of the Rules of Procedure, the costs are to be reserved.

| | On those grounds,
  THE PRESIDENT OF THE GENERAL COURT
  hereby orders: |
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On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

| | 1. | The application is dismissed. |
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1.

1.

The application is dismissed.

The application is dismissed.

| | 2. | The costs are reserved. |
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2.

2.

The costs are reserved.

The costs are reserved.

| | Luxembourg, 13 July 2017.


  E. Coulon
  Registrar


  M. Jaeger
  President |
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Luxembourg, 13 July 2017.

E. Coulon

Registrar

M. Jaeger

President

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(
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  )	Language of the case: Greek.

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