Order — ECLI:EU:T:2016:256
Date: 2016-04-20
Language of the case: Bulgarian
Court formation: Sixth Chamber
Subject matter: Research and technological development
Procedure: Action for annulment - inadmissible
Origin: Bulgaria

Summary — Order of the General Court (Sixth Chamber), 20 April 2016 1. Judicial proceedings — Absolute bar to proceeding — To be considered of the Court’s own motion (Rules of Procedure of the General Court, Art. 129) 2. Actions for annulment — Action relating in reality to a contractual dispute — Reclassification of the action — Conditions (Arts 263 TFEU and 272 TFEU) 3. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects (Art. 263 TFEU) 4. Actions for annulment — Action relating in reality to a contractual dispute — Annulment of a measure which is part of a purely contractual context — No jurisdiction of the EU judicature — Inadmissibility (Arts 263 TFEU, 272 TFEU, 274 TFEU and 288 TFEU) 5. Judicial proceedings — General Court seised under an arbitration clause — Contract subject to national law — Interpretation of the contract having regard to national law — Conditions (Art. 272 TFEU) 6. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Debit note issued by an institution referring to the possibility of enforcement action to recover the debt without taking a definitive position in that respect — Preparatory act (Arts 263 TFEU and 272 TFEU) 1. See the text of the decision. (see para. 27) 2. See the text of the decision. (see para. 30) 3. See the text of the decision. (see para. 32) 4. Although it is true that it would be inconsistent with the objective of an action for annulment under Article 263 TFEU to interpret the conditions under which the action is admissible so restrictively as to limit the availability of this procedure merely to the categories of measures referred to by Article 288 TFEU, the fact remains that that power of interpretation and application of the provisions of the Treaty by the EU judicature does not apply where the applicant’s legal position falls within the contractual relationships whose legal status is governed by the national law agreed to by the contracting parties. Were the EU judicature to hold that it had jurisdiction to adjudicate on the annulment of measures falling within purely contractual relationships, not only would it risk rendering Article 272 TFEU — which grants the Courts of the European Union jurisdiction pursuant to an arbitration clause — meaningless, but would also risk, where the contract does not contain such a clause, extending its jurisdiction beyond the limits laid down by Article 274 TFEU, which specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the European Union is a party. It follows from this that, where there is a contract between the applicant and one of the institutions, an action may be brought before the European Union judicative on the basis of Article 263 TFEU only where the contested measure aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the contracting institution acting in its capacity as an administrative authority. In that regard, in the event that an institution, specifically the Commission, chooses to allocate financial contributions by means of a contract falling within the framework of Article 272 TFEU, it is bound to stay within that framework. Accordingly, the institution is obliged, in particular, to ensure that it does not use, in the context of relationships with its counterparties, ambiguous formulations which might be understood by the parties to the contract as constituting unilateral decision-making powers going beyond the contractual provisions. (see paras 33-37) 5. The clauses of a contract concluded by an EU institution form part, together with the law applicable to the contract and under its auspices, of the rules governing the contractual relationship, interpretation of the contract in the light of the provisions of the applicable law being warranted only where there is uncertainty as to the contract’s content or the meaning of some of its clauses. (see para. 43) 6. A debit note issued by the Commission concerning sums due under a grant agreement cannot be classified as a definitive measure open to an action for annulment by reason of the fact that it contains information on the interest which will accrue on the debt established as receivable if it is not paid by the final date for payment, the possible recovery by offsetting or by calling in any previously provided guarantee, as well as the possibility of enforcement and inclusion in a database accessible to the authorising officers of the EU budget, even if it is drafted in a way which could give the impression that it is a definitive act of the Commission. Such information, could, in any event and by its very nature, only be information provided in preparation for an act of the Commission related to the enforcement of the debt established as receivable, since in the debit note the Commission does not adopt a position as to the means which it intends to employ in order to recover that debt, increased by default interest accruing from the final date for payment fixed in the debit note. The same also applies to information on possible methods of recovery. It follows that an action against that debit note cannot be validly brought before the EU judicature on the basis of Article 263 TFEU, since the debit note falls within a purely contractual framework from which it is inseparable and does not produce binding legal effects going beyond those flowing from the grant agreement and which involve the exercise of the prerogatives of a public authority conferred on the Commission in its capacity as an administrative authority. In any event, the inadmissibility of the action for annulment cannot deprive the co-contractor of its right to effective judicial review, since it is entitled to defend its position within the framework of an action brought on a contractual basis pursuant to Article 272 TFEU. (see paras 46, 47, 49, 52)