Order — ECLI:EU:C:2011:204
Date: 2011-03-31
Language of the case: English
Court formation: Fifth Chamber
Subject matter: External relations
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Austria

summary of the arguments of the parties in the order appealed against that this ground was relied on before the General Court. 89 Thus, the seventh ground is clearly inadmissible and must therefore be rejected. Eighth ground Arguments of the parties 90 According to the appellant, the General Court was wrong in holding that the administrative order at issue was made in compliance with the procedural requirements of the contractual framework applicable to the relationship between the Commission and AESA. 91 The Commission submits that this ground must be rejected for a number of reasons. First, it is a new ground, inadmissible at the appeal stage. Second, this ground concerns the circumstances in which the Commission made that administrative order. However, those circumstances were not examined by the General Court, since the action for annulment directed against that administrative order was inadmissible. Findings of the Court 92 By his eighth ground, the appellant claims, in essence, that the General Court did not duly take account, in the order appealed against, of the alleged infringement by the Commission of the contractual clauses governing the making of administrative orders such as the administrative order at issue. 93 However, in so far as the General Court concluded that the claim for annulment directed against the administrative order at issue was inadmissible, it was not obliged to examine the circumstances in which that administrative order had been made. 94 The eighth ground must therefore be rejected as clearly unfounded. Ninth and tenth grounds Arguments of the parties 95 By his ninth and tenth grounds, which must be examined together, the appellant alleges breach, by the Commission, of the general principle of equal treatment and of fundamental rights. 96 He submits that the Commission committed a breach of the principle of equal treatment since it complied with the requirement that a formal written proposal was to be drawn up in advance of the adoption of the administrative order at issue, but that it did not follow that procedure when issuing it. The Commission thus treated comparable situations differently. 97 That conduct on the part of the Commission infringed, moreover, the appellant’s right to engage in work and his right to enjoy the freedom to conduct a business, as recognised in Articles 15 and 16 of the Charter of Fundamental Rights of the European Union, and the right to property, as recognised in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950. 98 The Commission submits that those grounds must be rejected since they are not directed at errors that the General Court allegedly committed. Findings of the Court 99 In that regard, it should be recalled that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergadem and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 100 However, in this case the appellant has not indicated, in his ninth and tenth grounds, in what respect the General Court allegedly erred in law. The alleged breaches of the principle of equal treatment and of the fundamental rights relied on by the appellant are attributable, not to the General Court, but to the conduct of the Commission at the time of adopting the administrative order at issue. 101 The ninth and tenth grounds must therefore be rejected as clearly inadmissible. Eleventh ground Arguments of the parties 102 By his eleventh ground, the appellant claims that the General Court erred in law in holding, in paragraph 69 of the order appealed against, that the administrative order at issue had given rise to a non‑substantial amendment to the contract concluded between the Commission and AESA for the purposes of Article 20.2 of the General Conditions. According to the appellant, a loss of over 25% of his fees constituted a substantial amendment to that contract, which should, therefore, have been made, not by means of an administrative order, but by means of an addendum to the same contract. 103 According to the Commission, this ground is new and therefore inadmissible. Findings of the Court 104 As was recalled in the context of the examination of the seventh, ninth and tenth grounds, the Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the General Court. It must be stated that, by his eleventh ground, the appellant raises a matter which was not submitted to the General Court. 105 This ground is therefore clearly inadmissible and must therefore be rejected. Twelfth ground Arguments of the parties 106 According to the appellant, by not taking account of the fact that the Commission had failed to hear him, the General Court committed a breach of the rights of the defence. 107 According to the Commission, the documents submitted to the General Court show that the claim that the appellant was not heard is incorrect. In any event, this ground should be rejected since it concerns facts which the General Court did not examine because the action for annulment directed against the administrative order at issue was inadmissible. Findings of the Court 108 By this ground, the appellant complains that the General Court did not examine whether the Commission had respected his right to be heard during the process of making that administrative order and during the evaluation of the project ‘Value Chain Mapping Analysis’. 109 However, as is clear from paragraph 77 of the present order, the General Court was not required to examine those facts, since it concluded that the application was inadmissible. 110 It follows that the twelfth ground of appeal must therefore be rejected as clearly unfounded. Thirteenth ground Arguments of the parties 111 By his thirteenth ground, the appellant claims that the General Court was wrong in concluding, in paragraph 83 of the order appealed against, that the administrative order did not affect his legal position. 112 According to the Commission, the thirteenth ground raised by the appellant is a repetition of the fourth and fifth grounds and must therefore be rejected for the same reasons as those which it put forward in relation to those grounds. Findings of the Court 113 By his thirteenth ground, which is specific to the claim for damages, the appellant essentially reproduces the arguments put forward in connection with the fourth and fifth grounds, to the effect that his legal position was affected by the administrative order at issue. 114 The thirteenth ground of appeal must therefore be rejected as clearly unfounded for the same reasons as those set out at paragraphs 56 to 63 above. Fourteenth and fifteenth grounds Arguments of the parties 115 By his fourteenth and fifteenth grounds, which are specific to the claim for damages and must be dealt with together, the appellant claims that the General Court incorrectly assessed the Commission’s scope for intervention in the management of the project ‘Value Chain Mapping Analysis’, in particular as regards the experts’ remuneration. 116 The appellant claims that the General Court distorted the clear sense of the evidence produced to it by referring, in paragraph 31 of the order appealed against, to the ‘instructions and explanations that had been provided to him’. The reference to those instructions and explanations does not correctly reflect the role played by the Commission in the supervision of the appellant’s work. 117 The General Court also concluded, wrongly, that the Commission could not intervene, under its powers as a public authority, in the contractual relationship between the appellant and AESA in order to alter his remuneration. 118 According to the Commission, those grounds must be rejected in so far as the appellant has not demonstrated the existence of a ‘substantive inaccuracy’ or of a distortion, by the General Court, of the clear sense of the evidence produced to it. Findings of the Court 119 As was recalled in paragraph 70 of the present order, the Court of Justice has no jurisdiction, save where the facts have been distorted by the General Court, to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. 120 It must be stated that the appellant has not demonstrated in what respect the General Court distorted the clear sense of the evidence produced to it with regard to the Commission’s scope for intervention in connection with the project ‘Value Chain Mapping Analysis’. In those circumstances, the line of argument put forward by the appellant in those fourteenth and fifteenth grounds constitutes a mere allegation. 121 The fourteenth and fifteenth grounds must therefore be dismissed as clearly unfounded. Sixteenth ground Arguments of the parties 122 The appellant claims that the General Court erred in law in denying the existence of a causal link between the making of the administrative order at issue and the damage suffered by the appellant. 123 According to the appellant, that administrative order is definitely the cause of the damage suffered, in so far as it contained a negative and incorrect assessment of his professional performance, was issued after the end of specific contract 2007/146271 and was made in an unlawful manner. 124 Against that background, the General Court wrongly concluded that the administrative order in question produced legal effects only vis‑à‑vis AESA. 125 The appellant points out that, moreover, his claim for damages of a sum of EUR 500 is not related to his contractual fees. 126 According to the Commission, the appellant has not demonstrated that the alleged errors committed by the General Court in the appraisal of the facts were sufficiently grave for them to be penalised by the Court of Justice in the present appeal. Findings of the Court 127 In that regard, it must be recalled that the principles common to the laws of the Member States to which the second paragraph of Article 340 TFEU refers cannot be relied upon to found an obligation on the Union to make good every harmful consequence, even a remote one, of conduct of its institutions (see, to that effect, Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier and Others v Council [1979] ECR 3091, paragraph 21; Joined Cases C-363/88 and C‑364/88 Finsider and Others v Commission [1992] ECR I‑359, paragraph 25; and Trubowest Handel and Makarov v Council and Commission [2010] ECR I‑0000, paragraph 53). The condition under the second paragraph of Article 340 TFEU relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the institutions and the damage, the burden of proof of which rests on the applicant. The conduct complained of must therefore be the determining cause of the damage (see, to that effect, Trubowest Handel and Makarov v Council and Commission, cited above, paragraph 53 and case‑law cited). 128 Moreover, it must be recalled that, according to settled case-law, by virtue of Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts (see to that effect, among others, Case C-283/90 P Vidrányi v Commission [1991] ECR I‑4339, paragraph 12, and order in Case C‑19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 39). 129 In paragraphs 81 to 84 of the order appealed against, the General Court examined whether, in this case, there was a sufficiently direct causal nexus between the damage allegedly suffered by the appellant and the conduct for which the Commission is criticised. 130 It found, first of all, that the loss pleaded by the appellant corresponded to the remuneration due for work carried out by him under the contract between himself and AESA. The General Court inferred from this that the Commission could not in law intervene in regard to the appellant’s remuneration, since that remuneration was governed by the contract concluded between the applicant and AESA. The General Court therefore concluded that the loss pleaded was the result, not of the Commission’s allegedly unlawful conduct, but of AESA’s refusal to remunerate the appellant for the work which he claimed to have performed. 131 It follows from the assessments made by the General Court that it was fully entitled to find that there was no sufficiently direct causal nexus between the Commission’s conduct and the losses pleaded by the appellant. For such a causal link to be established, it is necessary that the damage was actually caused by the conduct of the institutions. 132 This approach is confirmed by the settled case-law referred to in paragraph 127 of the present order that, even in the case of a possible contribution by the institutions to the damage for which compensation is sought, that contribution might be considered too remote because of some responsibility resting on others. 133 Consequently, the sixteenth ground of appeal must be rejected as manifestly unfounded. 134 Since none of the grounds of appeal can be upheld, the appeal must be dismissed, without there being any need to have recourse to the measure of inquiry requested by the appellant. Costs 135 Under Article 69(2) of the Rules of Procedure, which, pursuant to Article 118 of those rules, applies to the procedure on appeal, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs of the appeal. On those grounds, the Court (Fifth Chamber) hereby orders: 1. The appeal is dismissed. 2. Mr Mauerhofer shall pay the costs. [Signatures] * Language of the case: English.