Judgment;Summary — ECLI:EU:C:2024:799
Date: 2024-09-26
Language of the case: French
Court formation: Third Chamber
Subject matter: Freedom to provide services;Public procurement in the European Union
Procedure: Action for annulment;Action for damages;Appeal - successful
Origin: Belgium

OPINION OF ADVOCATE GENERAL KOKOTT delivered on 25 January 2024 (1) Joined Cases C‑160/22 P and C‑161/22 P and Case C‑597/22 P European Commission v HB ( Appeal – Public service contracts – Irregularities in the award procedure – Decisions to recover amounts already paid adopted after signature of the contract – Action for annulment – Admissibility – Jurisdiction of the EU judicature – Enforceable decisions adopted in order to recover the amounts claimed – Competence of the European Commission to adopt those enforceable decisions ) Table of Contents I. Introduction 1. Where a party contracting with the European Union has committed an irregularity during the contract award procedure, which comes to light only after the contract has been signed, the European Commission may adopt, in respect of that co-contractor, a decision to recover amounts paid under the contract. Does such a decision fall within a contractual or non-contractual framework for the purpose of determining jurisdiction to hear a dispute in relation to it? 2. In other words, does such a recovery decision fall within the jurisdiction of the court having jurisdiction over the contract – the national court or the EU judicature, depending on whether or not the contract contains an arbitration clause within the meaning of Article 272 TFEU – or is it, on the contrary, an act open to challenge solely before the EU judicature by means of an action for annulment for the purposes of Article 263 TFEU? 3. That is the question which the Court of Justice will have to answer in Cases C‑160/22 P and C‑161/22 P. That answer will determine whether the General Court correctly characterised the recovery decisions at issue as forming part of a contractual framework and declined jurisdiction in favour of the Belgian court, the court having jurisdiction over the contract, or whether, on the contrary, it should have found that it had jurisdiction to hear the actions brought by the Commission’s co-contractor against those decisions. 4. The Court’s answer to that question will then dictate the answer to the question raised in Case C‑597/22 P. That question concerns whether the Commission could adopt enforceable decisions, for the purposes of Article 299 TFEU, to recover the amounts claimed by the recovery decisions at issue. 5. In accordance with its characterisation of those decisions as falling within the contractual framework, the General Court answered that question in the negative. According to the judgment in ADR Center v Commission (‘the ADR judgment’), (2) the Commission may not adopt an enforceable decision in the context of contractual relations which do not contain an arbitration clause in favour of the EU judicature. 6. Accordingly, the validity of the annulment, by the General Court, of the enforceable decisions at issue in Case C‑597/22 P depends on the merits of its findings concerning the recovery decisions at issue in Cases C‑160/22 P and C‑161/22 P. II. Legal context A. Treaty on the Functioning of the European Union 7. Articles 272, 274 and 299 TFEU provide: ‘Article 272 The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law. Article 274 Save where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States. Article 299 Acts of the Council, the Commission or the European Central Bank which impose a pecuniary obligation on persons other than States, shall be enforceable. Enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out. The order for its enforcement shall be appended to the decision, without other formality than verification of the authenticity of the decision, by the national authority which the government of each Member State shall designate for this purpose and shall make known to the Commission and to the Court of Justice of the European Union. When these formalities have been completed on application by the party concerned, the latter may proceed to enforcement in accordance with the national law, by bringing the matter directly before the competent authority. Enforcement may be suspended only by a decision of the Court. However, the courts of the country concerned shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner.’ B. Regulation on the protection of the Union’s financial interests 8. Articles 1 and 4 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (‘the PFI Regulation’), (3) are worded as follows: ‘Article 1 1. For the purposes of protecting the European Communities’ financial interests, general rules are hereby adopted relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law. 2. “Irregularity” shall mean any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure. Article 4 1. As a general rule, any irregularity shall involve withdrawal of the wrongly obtained advantage: – by an obligation to pay or repay the amounts due or wrongly received, – by the total or partial loss of the security provided in support of the request for an advantage granted or at the time of the receipt of an advance. 2. Application of the measures referred to in paragraph 1 shall be limited to the withdrawal of the advantage obtained plus, where so provided for, interest which may be determined on a flat-rate basis. 3. Acts which are established to have as their purpose the obtaining of an advantage contrary to the objectives of the Community law applicable in the case by artificially creating the conditions required for obtaining that advantage shall result, as the case shall be, either in failure to obtain the advantage or in its withdrawal. 4. The measures provided for in this Article shall not be regarded as penalties.’ C. EU Financial Regulations 1. 2002 Financial Regulation 9. Article 103 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, (4) as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (5) (‘the 2002 Financial Regulation’), provided: ‘Where the award procedure proves to have been subject to substantial errors, irregularities or fraud, the institutions shall suspend the procedure and may take whatever measures are necessary, including the cancellation of the procedure. Where, after the award of the contract, the award procedure or the performance of the contract prove to have been subject to substantial errors, irregularities or fraud, the institutions may, depending on the stage reached in the procedure, refrain from concluding the contract or suspend performance of the contract or, where appropriate, terminate the contract. Where such errors, irregularities or fraud are attributable to the contractor, the institutions may in addition refuse to make payments, may recover amounts already paid or may terminate all the contracts concluded with this contractor, in proportion to the seriousness of the errors, irregularities or fraud.’ 2. 2018 Financial Regulation 10. Article 98 of Regulation (EU, Euratom) 2018/1046 (‘the 2018 Financial Regulation’), (6) lays down the procedure for the establishment of amounts receivable by the European Union and the establishment of entitlement to demand that the debtor pay the debt. 11. Article 100 of the 2018 Financial Regulation, entitled ‘Authorisation of recovery’, provides, in the first subparagraph of paragraph 2 thereof: ‘A Union institution may formally establish an amount as being receivable from persons other than Member States by means of a decision which shall be enforceable within the meaning of Article 299 TFEU.’ 12. Article 131 of that regulation, entitled ‘Suspension, termination and reduction’, provides, inter alia: ‘1. Where an award procedure has been subject to irregularities or fraud, the authorising officer responsible shall suspend the procedure and may take any necessary measures, including the cancellation of the procedure. … 2. Where, after the award, the award procedure proves to have been subject to irregularities or fraud, the authorising officer responsible may: (a) refuse to enter into the legal commitment or cancel the award of a prize; (b) suspend payments; (c) suspend the implementation of the legal commitment; (d) where appropriate, terminate the legal commitment in whole or with regard to one or more recipients. 3. The authorising officer responsible may suspend payments or the implementation of the legal commitment where: (a) the implementation of the legal commitment proves to have been subject to irregularities, fraud or breach of obligations; (b) it is necessary to verify whether presumed irregularities, fraud or breach of obligations have actually occurred; (c) irregularities, fraud or breach of obligations call into question the reliability or effectiveness of the internal control systems of a person or entity implementing Union funds pursuant to point (c) of the first subparagraph of Article 62(1) or the legality and regularity of the underlying transactions. Where the presumed irregularities, fraud or breach of obligations referred to in point (b) of the first subparagraph are not confirmed, the implementation or payments shall resume as soon as possible. The authorising officer responsible may terminate the legal commitment in whole or with regard to one or more recipients in the cases referred to in points (a) and (c) of the first subparagraph. 4. In addition to measures referred to in paragraph 2 or 3, the authorising officer responsible may reduce the grant, the prize, the contribution under the contribution agreement or the price due under a contract in proportion to the seriousness of the irregularities, fraud or of the breach of obligations, including where the activities concerned were not implemented or were implemented poorly, partially or late. …’ III. Background to the appeals 13. The present cases concern two contracts, the CARDS contract and the TACIS contract, concluded between the European Union and the respondent, HB. During the performance of those contracts, it came to light that irregularities had been committed by HB during the award procedures. 14. Following those revelations, the Commission adopted decisions for the recovery of the amounts paid under the contracts, which formed the subject matter of the judgments of the General Court of 21 December 2021, HB v Commission (T‑795/19, ‘judgment T‑795/19’, EU:T:2021:917) and HB v Commission (T‑796/19, ‘judgment T‑796/19’, EU:T:2021:918), challenged by the appeals in Cases C‑160/22 P and C‑161/22 P. Moreover, the Commission subsequently adopted enforceable decisions to recover the amounts claimed, which formed the subject matter of the judgment of the General Court of 6 July 2022, HB v Commission (T‑408/21, ‘judgment T‑408/21’, EU:T:2022:418), challenged by the appeal in Case C‑597/22 P. 15. So far as is relevant, it may be noted that there are other cases pending before the Court which also concern the CARDS and TACIS contracts. (7) A. Joined Cases C‑160/22 P and C‑161/22 P 1. The CARDS and TACIS recovery decisions (a) The CARDS recovery decision 16. The background to the dispute in Case C‑160/22 P is set out, inter alia, in paragraphs 1 to 29 of judgment T‑795/19 and in the recitals of Commission Decision C(2019) 7319 final of 15 October 2019 to reduce the amounts due under contract CARDS/2008/166-429 and to recover the amounts unduly paid (‘the CARDS recovery decision’), and may be summarised as follows: 17. On 24 October 2007, the European Union, represented by the European Agency for Reconstruction (EAR), launched a call for tenders, with the reference EuropeAid/125037/D/SER/YU, with a view to concluding a service contract for the provision of technical assistance services to the High Judicial Council in Serbia. That contract formed part of the Community Assistance for Reconstruction, Development and Stabilisation (CARDS) Programme, the purpose of which was to provide assistance to the countries of south-eastern Europe with a view to their participation in the stabilisation and association process with the European Union. 18. On 10 June 2008, the contract CARDS/2008/166-429 (‘contract CARDS/2008/166-429’) was awarded to the consortium coordinated by the respondent, HB. The corresponding contract No 06SER01/05/004 (‘the CARDS contract’) was signed on 30 July 2008 for a maximum value of EUR 1 999 125. 19. The CARDS contract stipulated, inter alia, that the law applicable to the contract was EU law, supplemented, if necessary, by Belgian law (Article 9.1 of the special conditions), that any dispute relating to that contract fell within the exclusive jurisdiction of the courts of Brussels (Belgium) (Article 11 of the special conditions), that, if the European Union’s co-contractor committed errors, irregularities or acts of fraud during the contract award procedure, the European Union could refuse to make the payments due or recover amounts already paid in proportion to the seriousness of the errors, irregularities or fraud (Articles 35.1 and 35.2 of the general conditions), and that the European Union could terminate the contract in a variety of situations, inter alia where the co-contracting party had committed grave professional misconduct (Article 36.3(g) of the general conditions). 20. Following cessation of the work of EAR in December 2008, the CARDS contract was transferred to the EU Delegation to Serbia (‘the Delegation to Serbia’). 21. On 31 March 2010, performance of the CARDS contract was suspended following a fact-finding mission and an analysis report by the European Anti-Fraud Office (OLAF), which identified the existence of substantial irregularities and possible corruption during the contract award procedure. 22. Following the final investigation report and an additional analysis report by OLAF, the Delegation to Serbia informed HB of its intention to terminate the CARDS contract. By letter of 8 May 2015, that delegation informed HB, inter alia, that the contract was to be regarded as vitiated from the outset by irregularities relating to the award of the corresponding contract and that the Commission would proceed to recover all the amounts paid. By letter dated 9 October 2015, the Delegation to Serbia confirmed its decision to terminate that contract. 23. On 15 October 2019, the Commission adopted the CARDS recovery decision. The preamble to that decision referred, inter alia, to Article 103 of the 2002 Financial Regulation, Articles 131 and 98 of the 2018 Financial Regulation and Article 4 of the PFI Regulation, and the operative part of the decision was worded as follows: ‘Article 1 The award procedure of the restricted call for tenders, with reference EuropeAid/125037/D/SER/YU has been subject to an irregularity in [the] sense of Article 103 of [the 2002 Financial] Regulation … and of Article 131 of [the 2018 Financial] Regulation … Such irregularity is attributable to the consortium led by [HB], which signed the awarded [CARDS] contract … Article 2 The amount of the [CARDS] contract … is reduced from EUR 1 199 125.00 to EUR 0 (zero). Article 3 All funds paid on the basis of this [CARDS] contract in [the] amount of EUR 1 197 055.86 shall be considered as unduly paid and shall be recovered. Article 4 The Director-General of Directorate-General for Neighbourhood and Enlargement Negotiations shall issue a recovery order against [HB] for the amount referred to in Article 3. This Decision[,] together with the associated debit note, is addressed to [HB]. It shall apply from the date of receipt of the present decision by [HB]. Article 5 In accordance with Article 263 [TFEU], an action for annulment of this decision may be brought within two months to the Court of Justice of the European Union.’ (b) The TACIS recovery decision 24. The background to the dispute in Case C‑161/22 P is set out, inter alia, in paragraphs 1 to 24 of judgment T‑796/19 and in the recitals of Commission Decision C(2019) 7318 final of 15 October 2019 to reduce the amounts due under contract TACIS/2006/101-510 and to recover the amounts unduly paid (‘the TACIS recovery decision’), and may be summarised as follows: 25. On 25 January 2006, the European Union, represented by its Delegation to Ukraine (‘the Delegation to Ukraine’), launched a call for tenders, with reference EuropeAid/122038/C/SV/UA, with a view to concluding a service contract for the provision of technical assistance to the Ukrainian authorities for the approximation of Ukrainian legislation to EU legislation. That contract formed part of the Technical Assistance to the Commonwealth of Independent States (TACIS) Programme, which aimed to promote the transition to a market economy and to strengthen democracy and the rule of law in the partner countries of Eastern Europe and Central Asia. 26. On 17 June 2006, the contract TACIS/2006/101-510 (‘contract TACIS/2006/101-510’) was awarded to the consortium coordinated by the respondent, HB. The corresponding contract No 2006/101-510 (‘the TACIS contract’) was signed on 17 July 2006 for a maximum value of EUR 4 410 000. 27. The TACIS contract stipulated, inter alia, that any matters not covered by that contract were governed by Belgian law (Article 9.1 of the special conditions), that any dispute relating to that contract fell within the exclusive jurisdiction of the courts of Brussels (Article 11 of the special conditions), that, if the European Union’s co-contractor committed errors, irregularities or acts of fraud during the contract award procedure, the European Union could refuse to make the payments due or recover amounts already paid in proportion to the seriousness of the errors, irregularities or fraud (Articles 35.3 and 35.4 of the general conditions) and that the European Union could terminate the contract in a variety of situations, inter alia, where the co-contracting party had committed grave professional misconduct (Article 36.3(g) of the general conditions). 28. On 16 July 2009, performance of the TACIS contract and the related payments were suspended following an OLAF fact-finding mission and an analysis report, which identified the existence of substantial irregularities and possible corruption taking place during the contract award procedure. In addition, OLAF’s findings were, inter alia, forwarded to the Belgian judicial authorities. 29. In its final investigation report of 19 April 2010, OLAF confirmed the existence of substantial irregularities and possible corruption. OLAF recommended that the Delegation to Ukraine terminate the TACIS contract and recover the amounts unduly paid. 30. On 20 April 2012, the Delegation to Ukraine informed HB of its intention to lift the suspension of the TACIS contract on the grounds, first, that the judicial investigation being conducted by the Belgian authorities had been going on for a considerable time and, second, that the contract could be considered to have been performed. 31. On 19 March 2013, the Delegation to Ukraine informed HB that the TACIS contract could be considered to have been performed following approval of the final report, payment of the final invoice and reimbursement of the bank guarantee. 32. On 24 May 2018, the Delegation to Ukraine notified HB of its intention to recover all sums paid under contract TACIS/2006/101-510, amounting to EUR 4 241 507. 33. On 15 October 2019, the Commission adopted the TACIS recovery decision. The preamble to that decision referred to Article 103 of the 2002 Financial Regulation, Articles 131 and 98 of the 2018 Financial Regulation and Article 4 of the PFI Regulation, and the operative part of the decision was worded as follows: ‘Article 1 The award procedure of the restricted call for tenders, with reference EuropeAid/122038/C/SV/UA, has been subject to an irregularity in [the] sense of Article 103 of [the 2002 Financial] Regulation … and of Article 131 of [the 2018 Financial] Regulation … Such irregularity is attributable to the consortium led by [HB], which signed the awarded [TACIS] contract … Article 2 The amount of the [TACIS] contract … is reduced from EUR 4 410 000.00 to EUR 0 (zero). Article 3 All funds paid on the basis of this contract in [the] amount of EUR 4 241 507.00 shall be considered as unduly paid and shall be recovered. Article 4 The Director-General of Directorate-General for Neighbourhood and Enlargement Negotiations shall issue a recovery order against [HB] for the amount referred to in Article 3. This Decision[,] together with the associated debit note, is addressed to [HB]. It shall apply from the date of receipt of the present decision by [HB]. Article 5 In accordance with Article 263 [TFEU], an action for annulment of this decision may be brought within two months to the Court of Justice of the European Union.’ 2. Judgments T‑795/19 and T‑796/19 34. The procedures before the General Court and subsequent developments are described in paragraphs 30 to 51 of judgment T‑795/19 and paragraphs 25 to 46 of judgment T‑796/19 and may be summarised as follows. 35. By documents lodged on 19 November 2019, HB brought actions against the CARDS (Case T‑795/19) and TACIS (Case T‑796/19) recovery decisions. By those actions, it claimed that the General Court should, inter alia, annul those decisions and order the Commission to pay damages. The Commission, for its part, contended that the General Court should, inter alia, dismiss the actions for annulment as unfounded and the claims for damages as inadmissible or unfounded. 36. On 7 February 2020, HB brought an action against the European Union, represented by the Commission, before the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium), from which, in essence, it sought, in respect of contract TACIS/2006/101-510, a declaration that the European Union was not entitled to order that the amount of that contract be reduced to zero and, in respect of contract CARDS/2008/166-429, a declaration that the European Union was not entitled to terminate it. In the alternative, it sought an order requiring the European Union to pay contractual damages equivalent to the full amount of contracts TACIS/2006/101-510 and CARDS/2008/166-429. 37. On 19 February 2021, the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)) delivered a judgment by which it declared that it had the requisite jurisdiction to hear and determine the action brought by HB against the European Union, in respect of both contract TACIS/2006/101-510 and contract CARDS/2008/166-429, and decided to stay the proceedings on the substance pending the final decision(s) in Cases T‑795/19 and T‑796/19. 38. By judgments T‑795/19 and T‑796/19, the General Court, first, dismissed the two actions brought before it as inadmissible, in so far as they sought annulment of the CARDS and TACIS recovery decisions, and as unfounded, in so far as they sought to establish the non-contractual liability of the European Union. Second, it ordered the Commission to pay the costs pursuant to Article 135(2) of its Rules of Procedure. Under that provision, the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he, she or it has made the opposite party incur costs which the General Court holds to be unreasonable or vexatious. The General Court found that, in the present case, the Commission had increased the likelihood of the dispute arising through the wording of Article 5 of the CARDS and TACIS decisions. B. Case C‑597/22 P 1. The CARDS and TACIS enforceable decisions 39. On 5 May 2021, the Commission adopted Decision C(2021) 3340 final relating to the recovery, under contract CARDS/2008/166-429, of a debt in the amount of EUR 1 197 055.86 payable by HB (‘the CARDS enforceable decision’) and Decision C(2021) 3339 final relating to the recovery, under contract TACIS/2006/101-510, of a debt in the amount of EUR 4 241 507 payable by HB (‘the TACIS enforceable decision’). According to Article 5 thereof, both decisions are enforceable under Article 299 TFEU. 2. Judgment T‑408/21 40. On 9 July 2021, HB brought an action before the General Court seeking, inter alia, annulment of the CARDS and TACIS enforceable decisions, which was registered as Case T‑408/21. 41. By judgment T‑408/21, the General Court annulled those decisions on the ground, in essence, that the Commission, in the absence of an arbitration clause in the CARDS and TACIS contracts, did not have the power to adopt enforceable decisions on the basis of Article 299 TFEU. IV. Appeal procedures and forms of order sought A. Joined Cases C‑160/22 P and C‑161/22 P 42. By documents lodged on 7 March 2022, the Commission brought appeals against judgments T‑795/19 and T‑796/19, which were registered as Cases C‑160/22 P and C‑161/22 P. 43. By decision of the President of the Court of Justice of 11 May 2022, Cases C‑160/22 P and C‑161/22 P were joined for the purposes of the written and oral procedure and the judgment. 44. The Commission claims that the Court should: – set aside judgments T‑795/19 and T‑796/19, in so far as they dismiss as inadmissible the actions for annulment brought by HB against the CARDS and TACIS recovery decisions (point 1 of the operative parts) and order the Commission to pay the costs, including those relating to the interim proceedings (point 3 of the operative parts); – refer the cases back to the General Court for a decision on the substance of the actions for annulment and on costs, and – order HB to pay the costs. 45. HB contends that the Court should: – dismiss the appeals brought by the Commission, and – order the Commission to pay the costs. B. Case C‑597/22 P 46. By document lodged on 16 September 2022, the Commission brought an appeal against judgment T‑408/21, which was registered as Case C‑597/22 P. 47. The Commission claims that the Court should: – set aside judgment T‑408/21, in so far as it annuls the CARDS and TACIS enforceable decisions; – refer the case back to the General Court for a decision on the substance of the action for annulment, and – order HB to pay the costs. 48. HB contends that the Court should: – dismiss the appeal brought by the Commission, and – order the Commission to pay the costs. 49. The parties presented oral argument and answered questions from the Court at a joint hearing for the three appeals on 27 September 2023. V. Assessment 50. As stated in the introduction, the solution to be adopted in Case C‑597/22 P (B) depends on the solution which is adopted in Cases C‑160/22 P and C‑161/22 P. It is therefore appropriate to examine the latter cases first (A). A. Cases C‑160/22 P and C‑161/22 P 51. Before examining the substance of these cases, which concerns the question whether the CARDS and TACIS recovery decisions actually fall within the contractual framework and, subsequently, within the jurisdiction of the court having jurisdiction over the contract (2), it is necessary to examine the admissibility of the Commission’s appeals, which is called into question by HB (1). 1. Admissibility of the appeals 52. Under the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. 53. According to HB, in the present case, the Commission was not unsuccessful in its submissions so far as concerns the actions for annulment brought by HB before the General Court against the CARDS and TACIS recovery decisions, since the General Court dismissed those actions. The fact that they were dismissed as inadmissible rather than being dismissed as unfounded, as sought by the Commission, cannot, according to HB, mean that the Commission was unsuccessful in its submissions. 54. Moreover, again according to HB, the Commission has no interest in bringing proceedings in so far as its appeal is based on the need to protect the financial interests of the European Union. It contends that that line of argument fails to take into account the division of jurisdiction laid down by the FEU Treaty and the fact that the national court, as the court having jurisdiction over a contract concluded by the European Union, is just as capable of protecting the European Union’s financial interests as the EU judicature. 55. That plea of inadmissibility must be rejected without there being any need to decide whether the Commission, as a privileged applicant, must demonstrate an interest in bringing proceedings when it brings an appeal in disputes such as those in the present case. Nor is it necessary to examine the arguments put forward by HB to challenge the Commission’s interest in bringing proceedings, which, in my view, fall within the scope of the examination of the substance of the appeals, that is to say, the issue of the jurisdiction of the EU judicature to examine the actions at first instance, and not within the scope of the examination of the admissibility of the appeals. 56. It is sufficient to note that, in any event, contrary to HB’s view, the Commission was in fact unsuccessful in its submissions at first instance as regards the actions for annulment of the CARDS and TACIS recovery decisions, which confers on it an interest in bringing an appeal seeking to have judgments T‑795/19 and T‑796/19 set aside. 57. In that regard, it should be recalled that the General Court dismissed those actions for annulment because it considered that the disputes were of a contractual nature and therefore fell within the jurisdiction of the Belgian court, which was the court having jurisdiction over the contract by virtue of the clauses of the CARDS and TACIS contracts. (8) Moreover, HB also brought before the Belgian court actions which were, in terms of their effects, identical to those brought before the General Court, and the Belgian court declared that it had jurisdiction to hear and determine those actions, but stayed the proceedings pending the final decisions in the present cases. (9) 58. Accordingly, as the Commission correctly states, the fact that the General Court dismissed HB’s actions for annulment of the CARDS and TACIS recovery decisions as inadmissible rather than as unfounded adversely affects the Commission, with the result that the appeal is likely, if successful, to procure an advantage for it. (10) If the General Court had examined the substance of those actions and dismissed them as unfounded, the disputes would have been resolved and the merits of the Commission’s claims would have been established (subject to confirmation in any appeal). 59. It follows that, since the Commission was therefore unsuccessful in its submissions before the General Court, so far as concerns the actions for annulment of the CARDS and TACIS recovery decisions, the appeals in Cases C‑160/22 P and C‑161/22 P are indeed admissible. 2. Jurisdiction to hear the appeals against the CARDS and TACIS recovery decisions 60. According to the Commission, the General Court erred in law when it held that the CARDS and TACIS recovery decisions fell within the contractual framework for the purpose of determining jurisdiction to adjudicate on them, with the result that they fell within the jurisdiction of the court hearing the contractual dispute and not the court hearing the action for annulment. By contrast, the Commission maintains that those decisions are acts open to challenge for the purposes of Article 263 TFEU. 61. In support of that line of argument, the Commission puts forward three grounds of appeal which, by its own admission, are closely linked and can therefore be examined together. By those grounds of appeal, it argues, in essence, that the General Court wrongly characterised as contractual the prerogatives of a public authority which are conferred on the Commission by regulations in order to protect the financial interests of the European Union and which consist in unilaterally finding irregularities, reducing contract prices and recovering amounts unduly paid. (a) Reasoning at issue of the General Court 62. As regards the reasoning at issue of the General Court, the latter first recalled the settled case-law of the Court of Justice since the judgment in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (‘the Lito judgment’), (11) according to which the EU judicature may not extend 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. Accordingly, where there is a contract between an applicant and one of the EU institutions, an action may be brought before the EU judicature 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. (12) 63. In the light of those two conditions, the General Court rejected the Commission’s argument that the CARDS and TACIS recovery decisions, merely because they had been adopted on the basis of secondary legislation conferring on the Commission prerogatives of a public authority, fell within the ‘administrative sphere’ (as opposed to the ‘contractual sphere’). (13) 64. According to the General Court, even assuming that the 2002 and 2018 Financial Regulations (14) and the PFI Regulation authorise the Commission, under certain conditions, to implement measures falling within the prerogatives of a public authority, it follows from the requirements laid down in the Lito judgment that this cannot suffice automatically to exclude those measures from the contractual framework, where the implementation of those regulations stems from infringements attributed to a party in a contractual relationship with the European Union. (15) 65. According to the General Court, even though tendering procedures do not fall within the contractual framework, after the signature of the contract, the contracting authority is bound contractually towards the selected tenderer. Accordingly, the exercise of powers conferred on a contracting authority by secondary legislation to penalise irregularities committed during the award procedure falls, from the time of the signature of the contract, within the framework of contractual relations. In the present case, the decisive factors are therefore the fact that those powers were exercised when the parties were already bound to one another under the CARDS and TACIS contracts, that they had already performed a substantial part, if not all, of their respective obligations and that the measures at issue had the effect of cancelling the Commission’s obligations under the contracts, namely the payments to HB. (16) 66. Therefore, according to the General Court’s analysis, the second condition laid down by the case-law for the characterisation of an act adopted within a contractual framework as an act open to challenge for the purposes of Article 263 TFEU was not satisfied, since the CARDS and TACIS recovery decisions were capable only of producing effects falling within the contractual framework. (17) (b) Assessment of the Commission’s arguments 67. The Commission argues, in particular in its first ground of appeal, that the General Court’s reasoning creates new case-law which ‘contractualises’ the Commission’s prerogatives as a public authority. In so doing, it subverts the EU legal system, renders ineffective the provisions of decisions taken by the Commission and deprives it of its prerogatives as a public authority and of an essential tool for defending the European Union’s financial interests. 68. That line of argument cannot succeed, however. 69. Contrary to what the Commission maintains, the reasoning at issue of the General Court is a correct application of principles well established, in particular, by the Lito and ADR judgments (1). Similarly, the General Court’s solution does not affect the Commission’s competence to exercise its prerogatives as a public authority, but concerns only the jurisdiction to rule on measures adopted on that basis (2). (1) The CARDS and TACIS recovery decisions in the light of the conditions for the admissibility of actions for the annulment of acts adopted in a contractual context 70. As stated by the General Court, according to the Lito judgment, where there is a contract between an applicant and an institution of the European Union, in order for an act to be open to challenge by an action for annulment based on Article 263 TFEU, it must satisfy two conditions: it must not only derive from the exercise of prerogatives of a public authority conferred on the contracting institution acting in its capacity as an administrative authority, but must also be intended to produce binding legal effects falling outside of the contractual relationship between the parties. 71. It follows that, contrary to what the Commission maintains in its first ground of appeal, the General Court was correct in holding that the mere non-contractual source of the powers exercised by the Commission when adopting the CARDS and TACIS recovery decisions, assuming that it were established, was not sufficient to characterise those decisions as acts open to challenge for the purposes of Article 263 TFEU in the absence of effects of those decisions falling outside the contractual relationship between the parties. 72. That conclusion is not called into question by the fact, put forward by the Commission, inter alia, in its first ground of appeal and at the hearing, that those powers were conferred on it as an administrative authority in order to penalise irregularities within the meaning of Article 4 of the PFI Regulation and Article 103 of the 2002 Financial Regulation and to protect the European Union’s budget. Similarly, the fact that the Commission has discretion to recover amounts already paid in proportion to the seriousness of the errors committed is not sufficient to support the conclusion that measures adopted on that basis cannot be regarded as falling within the contractual framework for the purposes of legal proceedings in connection with them. 73. It is true that such powers are similar to measures of an ‘administrative’ nature, which differ from the implementation of traditional contractual rights and obligations such as, for example, a claim for damages for improper performance of the contract. (18) However, this does not mean, as far as the contracts of the European Union institutions are concerned, that the acts implementing such powers which are adopted by the contracting institution must be characterised as acts open to challenge for the purposes of Article 263 TFEU where they fall within the contractual framework and do not produce binding legal effects falling outside that framework. (19) It would not be compatible with the system of remedies established by primary law if the exercise of those powers automatically gave rise to the jurisdiction of the EU judicature under that provision. 74. As follows from the considerations set out in the Lito judgment reproduced in point 62 of this Opinion, the two conditions to be satisfied in order for an act adopted by the European Union in respect of a co-contractor to be open to challenge by an action for annulment stem from the system of legal remedies established by the FEU Treaty. According to Articles 272 and 274 of that Treaty, disputes to which the Union is a party are not, on that ground, to be excluded from the jurisdiction of the courts or tribunals of the Member States and the EU judicature has jurisdiction to give judgment on disputes arising out of a contract concluded by the European Union, only if that contract contains an arbitration clause in favour of the EU Courts. 75. Accordingly, as the Court held in paragraph 19 of the Lito judgment and paragraph 64 of the ADR judgment, were the EU judicature to hold that it had jurisdiction to adjudicate, on the basis of Article 263 TFEU, on the legality of acts falling within contractual relationships, it would risk rendering Article 272 TFEU meaningless. Moreover, where the contract does not contain an arbitration clause in favour of the EU judicature, this would risk extending its jurisdiction beyond the limits laid down by Article 274 TFEU. 76. It is because of that division of jurisdiction that the definition of an act open to challenge for the purposes of Article 263 TFEU is stricter in a contractual context than in other contexts. Accordingly, where an act concerns a co-contractor of the European Union, it is not sufficient for the ability to challenge an act under Article 263 TFEU that it produces binding legal effects for its addressee; it is also necessary for those binding legal effects to fall outside the contractual relationship between the parties. (20) That restriction on the access by co-contractors of the European Union to the court hearing an action for annulment does not adversely affect their right to a remedy if they have an effective remedy before the court having jurisdiction over the contract. (21) 77. A decision taken in a contractual context may have non-contractual effects, for example, in the event of the temporary exclusion of a co-contractor which has breached a contract from further EU contracts and grants, or the ‘blacklisting’ of such a co-contractor in a central database of the EU institutions. (22) 78. In the present case, however, the Commission failed to establish what effects the CARDS and TACIS recovery decisions might have outside the contractual relationship between the parties. 79. As the General Court, in essence, correctly found, even though those decisions penalise an irregularity committed before the conclusion of the contracts at issue, their effect is to require HB to repay the payments made by the European Union to HB under those contracts. They therefore concern the rights and obligations of the parties under those contracts. Those payments were initially payable to HB only by virtue of the contractual provisions and would not have been made by the European Union if the contracts had not yet been signed. The obligation imposed on HB to repay the amounts in question therefore affects its situation as a co-contractor of the European Union, but does not impose on it obligations going beyond or having effects which fall outside that contractual relationship. 80. Even though the measures adopted by the Commission do not concern the performance of the contract by HB, they do penalise the latter in its capacity as a co-contractor of the European Union. Moreover, the Commission has itself stated, inter alia at the hearing in the present cases, that the fact that the irregularities penalised in the present case were committed before the conclusion of the contracts was not decisive. In the Commission’s view, the decisive factor in characterising the recovery decisions at issue as acts open to challenge for the purposes of Article 263 TFEU is that the penalised conduct constitutes an ‘irregularity’ within the meaning of the PFI Regulation and the 2002 Financial Regulation. 81. However, as HB has correctly pointed out, such a position is wholly inconceivable in the light of the division of jurisdiction established by the Treaty. In view of the broad definition of the concept of ‘irregularity’ in Article 1 of the PFI Regulation, it would be impossible to distinguish between irregularities falling within the jurisdiction of the court hearing the action for annulment and breaches of contractual obligations falling within the jurisdiction of the court having jurisdiction over the contract. Such a situation would, moreover, be a source of legal uncertainty both for co-contractors of the European Union and for the national courts. 82. Finally, it is important to note that the CARDS and TACIS recovery decisions adopted by the Commission in the present case differ from the enforceable decisions for the purposes of Article 299 TFEU at issue in the ADR case, which were characterised as acts open to challenge for the purposes of Article 263 TFEU. As the Court found, the effects and binding force of such enforceable decisions (which permit direct enforcement) cannot derive from contractual clauses but derive from Article 299 TFEU, read in conjunction with the provision of the Financial Regulation which constitutes the legal basis for the adoption of such a decision in a particular case. (23) 83. In the present case, the recovery decisions at issue indeed establish an obligation to pay, but do not permit direct enforcement of that obligation, unlike enforceable decisions for the purposes of Article 299 TFEU. The non-contractual legal effects of such enforceable decisions consist in the fact that, through a unilateral act adopted by the Commission itself as a public authority, it establishes the enforceability of a debt arising under a contract. (24) 84. Moreover, the enforcement of a decision based on Article 299 TFEU may be suspended only by a decision of the Court of Justice of the European Union, while the courts of the country concerned have jurisdiction only over complaints that enforcement is being carried out in an irregular manner. Accordingly, an enforceable decision for the purposes of Article 299 TFEU must fall within the jurisdiction of the EU judicature. (25) In the present case, by contrast, the Commission has failed to establish why the recovery decisions at issue should, in its view, fall within the jurisdiction of the EU judicature. 85. It follows from the foregoing that the second and third grounds of appeal are ineffective. By those grounds of appeal, the Commission argues, in essence, that the General Court erred in treating the measures adopted by the Commission by means of the CARDS and TACIS recovery decisions as being equivalent to contractual measures, for example as a penalty for an irregularity affecting the conclusion of the contract or for ‘fraudulent misrepresentation’ within the meaning of Belgian law or as retroactive cancellation of the binding effects of the contract. 86. Even if the General Court erred in analysing those measures through the prism of contract law, the fact remains that it correctly applied the requirements laid down in the case-law for analysing whether or not measures imposed by the Commission on its co-contractors are open to challenge for the purposes of Article 263 TFEU. Accordingly, the second and third grounds of appeal must be rejected without there being any need to examine the specific arguments put forward by the Commission in those grounds. (2) The CARDS and TACIS recovery decisions and the Commission’s dual function in contractual matters 87. Contrary to what the Commission maintains, the solution adopted by the General Court does not deprive it of the possibility of exercising the powers to penalise irregularities conferred on it by the PFI Regulation and the 2002 and 2018 Financial Regulations. The General Court ruled not, as the Commission seems to imply, on the Commission’s competence to adopt the CARDS and TACIS recovery decisions, but only on the jurisdiction to hear and determine actions brought against those decisions. 88. Accordingly, the General Court did not even address the issue of whether the Commission was entitled to adopt the CARDS and TACIS recovery decisions solely on the basis of Article 4 of the PFI Regulation and Article 103 of the 2002 Financial Regulation, or whether it was necessary for the relevant provisions of those regulations also to be reproduced in the contractual clauses, as was the case here. (26) According to the General Court, those regulations do in fact apply directly to the contracts at issue; nevertheless, it found that, in any event, in the present case, the relevant provisions of those regulations were also reproduced in the clauses of those contracts. (27) In those circumstances, it is not necessary to decide, in the context of the present cases, whether the Commission could nonetheless exercise the powers conferred on it by the PFI Regulation and the 2002 and 2018 Financial Regulations in a situation in which the possibility of exercising those powers was not referred to in the contractual clauses. 89. As the Commission itself explained at the hearing, when it concludes contracts it has a dual function: although it is contractually bound, it does not pursue its own interest like a private co-contractor, but exercises its powers in order to carry out its tasks, including the implementation of EU policies and the protection of the European Union’s financial interests. Therefore, even as a co-contractor, it does not divest itself of the specific rights and obligations attaching to it as a public authority, with the result that its contracts are subject to rules which are different from those for contracts between private co-contractors. This is all the more true in so far as the EU legislature has conferred on the Commission, through secondary legislation, powers of action vis-à-vis its co-contractors, such as those implemented in the present case. (28) 90. However, that does not mean that the measures adopted under those powers fall within the jurisdiction of the court hearing the action for annulment if the effects of those measures occur within the contractual relationship between the parties. Otherwise, that would be contrary to the division of jurisdiction, established by the FEU Treaty, in matters relating to contracts concluded by the European Union, as explained in points 70 to 76 above. 91. Moreover, contrary to what the Commission claims, the solution adopted by the General Court does not render ineffective the acts adopted by the Commission to penalise irregularities committed by its co-contractors or oblige it to apply to the courts for the purpose of implementing its powers, thereby preventing it from protecting the financial interests of the European Union. Indeed, the General Court has in no way called into question the fact that unilateral decisions to terminate contracts and recover amounts paid (inasmuch as the latter establish an obligation to pay) take effect as soon as they are adopted, irrespective of any intervention by the court having jurisdiction over the contract. In accordance with the ADR case-law, the Commission only needs to apply to the court having jurisdiction over the contract to obtain an enforcement order for the recovery of those amounts where the contract does not contain an arbitration clause in favour of the EU judicature. That follows from the division of jurisdiction in contractual matters laid down by primary law, as has just been explained. 92. Finally, at the hearing in the present cases, reference was made to French administrative law which has, in particular in relation to government contracts, certain similarities with the administrative law of the institutions of the European Union. A solution which consists in acknowledging the existence of prerogatives on the part of the contracting authority, while making the measures adopted in the exercise of those powers subject to the jurisdiction of the court having jurisdiction over the contract and not the court hearing the action for annulment, is also consistent with the solution adopted in French administrative law. (29) 3. Conclusion on Cases C‑160/22 P and C‑161/22 P 93. It follows from the foregoing considerations that the arguments put forward by the Commission to show that the General Court committed errors in Cases T‑795/19 and T‑796/19 cannot succeed. The appeals in Cases C‑160/22 P and C‑161/22 P must therefore be dismissed. B. Case C‑597/22 P 94. As stated above, (30) Case C‑597/22 P is concerned with enforceable decisions, for the purposes of Article 299 TFEU, adopted by the Commission in respect of HB in order to recover the amounts claimed by the CARDS and TACIS recovery decisions. 95. In judgment T‑408/21, the General Court annulled those enforceable decisions in accordance with the principles derived from the ADR judgment. As the General Court pointed out, (31) the Court of Justice held in that judgment that the Commission could not adopt an enforceable decision in the context of contractual relations if the latter did not contain an arbitration clause in favour of the EU judicature and therefore fell within the jurisdiction of the courts of a Member State. 96. Accordingly, it followed from the solution adopted by the General Court in judgments T‑795/19 and T‑796/19, according to which the CARDS and TACIS recovery decisions were contractual in nature, that the Commission did not have the power to adopt enforceable decisions for their implementation, since the CARDS and TACIS contracts did not contain an arbitration clause in favour of the EU judicature. 97. By its appeal in Case C‑597/22 P, the Commission argues that that finding of the General Court in Case T‑408/21 is erroneous, since its finding as to the contractual nature of the CARDS and TACIS recovery decisions in Cases T‑795/19 and T‑796/19 is itself erroneous. 98. It follows, as the Commission itself acknowledges, that if the Court of Justice confirms that the CARDS and TACIS recovery decisions are contractual in nature, that would mean that the Commission does not have the power to adopt the CARDS and TACIS enforceable decisions and that its appeal in Case C‑597/22 P is unfounded. 99. In line with my proposal in Cases C‑160/22 P and C‑161/22 P to endorse the solution adopted by the General Court in judgments T‑795/19 and T‑796/19, I therefore propose that the Court should also endorse the solution adopted by the General Court in judgment T‑408/21 and consequently dismiss the appeal in Case C‑597/22 P. C. Interim conclusion 100. It follows from the foregoing considerations that the appeals in Joined Cases C‑160/22 P and C‑161/22 P and the appeal in Case C‑597/22 P must be dismissed. VI. Costs 101. Under Article 184(2) of its Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. 102. Under Article 138(1) of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 184(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 103. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by HB. VII. Conclusion 104. In the light of all the foregoing considerations, I propose that the Court should, in Joined Cases C‑160/22 P and C‑161/22 P and in Case C‑597/22 P: (1) Dismiss the appeals; (2) Order the European Commission to pay the costs. 1 Original language: French. 2 Judgment of 16 July 2020 (C‑584/17 P, EU:C:2020:576, paragraph 73). 3 OJ 1995 L 312, p. 1. 4 OJ 2002 L 248, p. 1. 5 OJ 2006 L 390, p. 1. 6 Regulation of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1). 7 Those are, first, the appeal in Case C‑770/23 P, Commission v HB, brought against the judgment of 4 October 2023, HB v Commission (T‑444/22, EU:T:2023:604), which concerns a decision by which the Commission offset HB’s claim against it for the costs which the Commission was ordered to pay by judgments T‑795/19 and T‑796/19 and the claim which the Commission states that it has against HB under the CARDS contract. Second, they are the appeals in Cases C‑721/22 P, Commission v PB, brought against the judgment of 14 September 2022, PB v Commission (T‑775/20, EU:T:2022:542), and C‑768/23 P, brought against the judgment of 4 October 2023, PB v Commission (T‑407/21, EU:T:2023:603), which concern a decision by which the Commission found the director of HB jointly and severally liable for payment of the amounts claimed under the TACIS and CARDS contracts and an enforceable decision adopted in respect of that director for the recovery of those amounts. 8 See points 19 and 27 of this Opinion. 9 See points 36 and 37 of this Opinion. 10 See, with respect to that condition, judgment of 19 October 1995, Rendo and Others v Commission (C‑19/93 P, EU:C:1995:339, paragraph 13). 11 Judgment of 9 September 2015 (C‑506/13 P, EU:C:2015:562, paragraphs 19 and 20); see also the ADR judgment (paragraphs 64 and 65). 12 Judgments T‑795/19 (paragraphs 55 and 56) and T‑796/19 (paragraphs 50 and 51). 13 Judgments T‑795/19 (paragraph 75) and T‑796/19 (paragraph 70). 14 According to the Commission’s considerations set out in recitals 19 to 21 of the CARDS recovery decision and in recitals 13 to 15 of the TACIS recovery decision, Article 103 of the 2002 Financial Regulation, applicable at the time when the conduct in question took place, is relevant as regards the Commission’s power to recover the amounts paid because of the irregularities committed. In so far as the 2018 Financial Regulation, applicable at the time of the adoption of the CARDS and TACIS recovery decisions, nonetheless contains essentially identical rules, there is no need to consider whether that interpretation is correct. 15 Judgments T‑795/19 (paragraph 76) and T‑796/19 (paragraph 71). 16 Judgments T‑795/19 (paragraphs 71, 72 and 80) and T‑796/19 (paragraphs 66, 67 and 75). 17 Judgments T‑795/19 (paragraph 89) and T‑796/19 (paragraph 86). 18 On the existence of such powers in the EU rules on contracts, see also my Opinion in ADR Center v Commission (C‑584/17 P, EU:C:2019:941, points 84, 127 and 154). 19 See, to that effect, judgments of 10 April 2013, GRP Security v Court of Auditors (T‑87/11, EU:T:2013:161, paragraphs 16 and 30); and of 24 February 2021, Universität Koblenz-Landau v EACEA (T‑108/18, EU:T:2021:104, paragraphs 50 to 59); confirmed by the judgment of 22 December 2022, Universität Koblenz-Landau v EACEA (C‑288/21 P, EU:C:2022:1027). 20 See, on this point, my Opinion in ADR Center v Commission (C‑584/17 P, EU:C:2019:941, point 150 and the case-law cited therein). 21 See, on this point, the ADR judgment (paragraphs 81 to 89) and my Opinion in ADR Center v Commission (C‑584/17 P, EU:C:2019:941, points 137 to 158). 22 See my Opinion in ADR Center v Commission (C‑584/17 P, EU:C:2019:941, point 98 and the case-law cited). 23 The ADR judgment (paragraphs 69 to 71); see, also, my Opinion in ADR Center v Commission (C‑584/17 P, EU:C:2019:941, points 97 to 104). 24 See my Opinion in ADR Center v Commission (C‑584/17 P, EU:C:2019:941, point 103). 25 See my Opinion in ADR Center v Commission (C‑584/17 P, EU:C:2019:941, point 49). 26 See points 19 and 27 of this Opinion. 27 Judgments T‑795/19 (paragraphs 77 and 81) and T‑796/19 (paragraphs 72 and 77). 28 See point 73 of this Opinion. 29 See, in that regard, Wachsmann, P., ‘La recevabilité du recours pour excès de pouvoir à l’encontre des contrats – Pour le centenaire de l’arrêt Martin’, Revue française de droit administratif (RFDA), 1/2006, p. 24 et seq.: ‘With regard to separable acts subsequent to the conclusion of the contract, the theory of separable acts is essentially available to third parties, and the parties to the contract must confine themselves to referring the matter to the court having jurisdiction over the contract and to raising, in the event of failure to comply with that obligation, an objection of a parallel remedy. The decision of the Assemblée of 2 February 1987, Société TV 6, thus clearly indicates, in the case of termination, the distinction that must be drawn between the case of third parties, who are entitled to bring an action for misuse of powers provided that their interest in bringing proceedings is established, and that of the concession holder which brings its claim before the court having jurisdiction over the contract. The “objective definition of a separable act” … therefore applies only prior to the conclusion of the contract and barely extends to implementing measures, with respect to which the distinction between parties and third parties remains’. See also, on more recent developments, Hoepffner, H., Droit des contrats administratifs, Dalloz, Paris, 3rd edition, 2022, p. 899, No 1013 et seq., p. 912, No 1033 et seq., and Conseil d’État (France), commentary on the judgment of 28 December 2009, Commune de Béziers, https://www.conseil-etat.fr/decisions-de-justice/jurisprudence/les-grandes-decisions-depuis-1873/conseil-d-etat-28-decembre-2009-commune-de-beziers. 30 See point 39 et seq. of this Opinion. 31 Judgment T‑408/21 (paragraph 50).