Judgment — ECLI:EU:T:2018:600
Date: 2018-09-25
Language of the case: English
Court formation: First Chamber
Subject matter: Space;Research and technological development
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible;Arbitration clause - unfounded;Arbitration clause - successful
Origin: Germany

summary because the proceedings for interim relief are by nature urgent (see order in Borghezio v Parliament, cited in paragraph 14 above, EU:T:2013:385, paragraph 24 and the case-law cited). 16 Thus, in proceedings for interim relief, the admissibility of the main action may be examined only on a prima facie basis and the judge hearing the application for interim measures should declare that action inadmissible only if the admissibility of the corresponding main action can be entirely excluded. To rule, at the stage of the proceedings for interim relief, on the admissibility of the main action, when its admissibility is not, prima facie, wholly excluded, would be tantamount to prejudging the Court’s decision in the main proceedings (see order in Borghezio v Parliament, cited in paragraph 14 above, EU:T:2013:385, paragraph 25 and the case-law cited). 17 In the present case, the Commission claims that the main action is inadmissible, as a result of which the application for interim measures must, in its view, be declared inadmissible. The Commission submits that none of the acts which form the subject matter of the main proceedings is open to challenge by an action for annulment. 18 In that respect, it must be noted that the applicant states, in the application for interim measures, that it brought an ‘action for annulment against all [the] defendant’s decision[s] to recover EUR 1 770 417.29’, emphasising that ‘the contested decisions [are] of direct and individual concern [to] the applicant’ and that ‘the General Court ... [has jurisdiction] for the main proceedings (Article 272 TFEU)’. In its main application, annexed to the application for interim measures, the applicant submits, first, that it is an ‘action for annulment’ brought against several ‘decisions’ of the Commission, ‘the contested decisions [being] addressed to [it] (Article 263(4) TFEU)’ and ‘of direct and individual concern [to it]’ and, secondly, that the Court has jurisdiction under an arbitration clause, within the meaning of Article 272 TFEU, in the grant agreements concluded with the Commission. 19 As regards the substance of the action, the applicant submits, in order to demonstrate that there is a prima facie case, that the recovery imposed by the Commission is unlawful, on the grounds, first, that all the costs claimed satisfy the eligibility criteria laid down in ‘Article II.14.1 of Annex II to the Seventh Framework Programme Grant Agreement’. Secondly, the applicant relies, inter alia, on a breach of formal requirements, namely: its right to be heard, the principle of transparency, and the principle of proportionality. 20 It therefore appears, prima facie, that the main action to which the application for interim measures is an adjunct is based on a dual legal basis: one — relevant for an action seeking the annulment of administrative acts adopted by the Commission — based on Article 263 TFEU, and another — relevant for a contractual dispute — based on Article 272 TFEU, relating to the interpretation, application and validity of grant agreements concluded between the applicant and the Commission. 21 In those circumstances and for the purposes of the present proceedings for interim relief, it is necessary to examine, first of all, the various acts which form the subject matter of both the application for interim measures and the main action and which appear, prima facie, to be challengeable by an action for annulment based on Article 263 TFEU. 22 In that respect, as regards the setting off carried out by the Commission, the applicant acknowledges, in its written submission of 2 February 2016, that it did not list those setoffs as contested decisions in the application for interim measures. It submits that, the setting off having already been carried out, its lawfulness will be challenged in the main proceedings. It follows that the setoffs must be removed from the scope of the present examination. In any event, if the applicant intended to invoke damage caused by that setting off, it would be invoking damage already suffered. The purpose of proceedings for interim relief is not to repair damage which has already occurred. Clearly, damage which has already occurred cannot be prevented by the grant of the requested interim measures (see order of 16 June 2015 in Alcogroup and Alcodis v Commission, T‑274/15 R, EU:T:2015:389, paragraph 16). 23 As regards the Debit Note, it must be noted that that document, first, states the principal amount to be reimbursed, the maturity date and the payment terms, including the rate of interest for late payment. Secondly, it notifies the applicant that it is open to the Commission to proceed, in the event of non-payment, with liquidation of financial guarantees provided, to the recovery of its claims by means of setting off or enforcement under Article 299 TFEU. Consequently, that debit note must be understood as a formal demand for payment, in the context of the agreements between the Commission and the applicant, and it cannot be equated to an enforcement order, even though it refers to enforcement pursuant to Article 299 TFEU as a possible option among others open to the Commission where a party fails to perform an obligation by the delivery date laid down (see, to that effect, judgment of 9 September 2015 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, ECR, EU:C:2015:562, paragraph 23). 24 The Commission having chosen to allocate the grants provided for under the sixth and seventh framework programmes to the applicant by means of a contract falling within the framework of Article 272 TFEU, it follows that the Debit Note does not produce legal effects stemming from the exercise of the prerogatives of a public authority, but must, on the contrary, be regarded as inseparable from the contractual relationship existing between the Commission and the applicant (see, to that effect, judgment in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, cited in paragraph 23 above, EU:C:2015:562, paragraphs 21 and 24). 25 It follows from the foregoing that the applicant is, prima facie, not entitled to challenge the Debit Note by its main action, inasmuch as that action seeks the annulment of that act on the basis of Article 263 TFEU. 26 That is also the case, a fortiori, as regards the information letters. In those letters, the Commission responds to the applicant’s arguments concerning the final audit reports relating to the audited projects within the sixth and seventh framework programmes, indicates that it will proceed with the recovery of the amounts unduly paid to the applicant and expressly mentions Article 272 TFEU as a means of redress in the event of disagreement. In view of that content, it is clear that those documents, which must be situated ‘upstream’ of the Debit Note, are, by comparison with that note, even less capable of producing legal effects stemming from the exercise by the Commission of the prerogatives of a public authority. 27 It follows, prima facie, that, by its main action, the applicant is not entitled to challenge any of the acts referred to in the first head of claim in the application for interim measures, inasmuch as the main action seeks the annulment of those acts on the basis of Article 263 TFEU. 28 Nevertheless, it must be recalled that, when faced with an action for annulment, where the dispute is, in point of fact, contractual in nature, the Community judicature may, for reasons of procedural economy, reclassify the action, provided that the conditions for such a reclassification are satisfied (see judgment of 10 April 2013 in GRP Security v Court of Auditors, T‑87/11, EU:T:2013:161, paragraph 31 and the case-law cited). In order to carry out such a reclassification, where there is an arbitration clause in the grant agreement in question — as in the present case — attributing jurisdiction to the General Court to rule on an action brought on a contractual basis (see, to that effect, order of 6 January 2015 in St’art and Others v Commission, T‑36/14, EU:T:2015:13, paragraph 36), it is sufficient that one of the pleas in law characteristic of an action based on Article 272 TFEU is put forward in the application, whereas reclassification must be excluded where the applicant’s express intention not to base his application on Article 272 TFEU precludes such a reclassification or where the action is not based on any plea alleging infringement of the rules governing the contractual relationship in question (see, to that effect, judgment of 17 June 2010 in CEVA v Commission, T‑428/07 and T‑455/07, ECR, EU:T:2010:240, paragraphs 59 and 61 and the case-law cited). 29 In the present case, it is not a question of examining the possibility of such a reclassification as such, for from the beginning the applicant based its main action not only on Article 263 TFEU, but also on Article 272 TFEU. That may be interpreted as reflecting its intention to rely on two legal bases in the action, by invoking Article 272 TFEU as regards the contractual aspect of the dispute, whereas the non-contractual aspect, namely, the extrajudicial setoffs — which are not the subject of the present proceedings for interim relief — relates to Article 263 TFEU (see, to that effect, judgment of 8 October 2008 in Helkon Media v Commission, T‑122/06, EU:T:2008:418, paragraph 46 and the case-law cited). 30 In addition, the action based on Article 272 TFEU relies on claims characteristic of such an action, alleging infringement of the rules governing the contractual relationship at issue. The applicant submits that the Commission, in recovering amounts corresponding to the grants awarded to the applicant, infringes the grant agreements concluded under the sixth and seventh framework programmes, given that the costs incurred by the applicant in that context meet the relevant eligibility criteria. 31 Although the Commission submits that the claims made by the applicant are vague and insufficient, it raises issues which are not such as to call into question the admissibility of the action, but which relate to its substance. Consequently, those questions fall to be decided in the examination of the substance. 32 It follows that the first head of claim in the application for interim measures must be declared admissible, in that it is an adjunct to a main action of a contractual nature, the admissibility of which cannot be entirely excluded. 33 However, in so far as the application for interim measures seeks, in its second head of claim, the adoption of ‘any further interim measures necessary for that suspension of operation’, it must be held that that head of claim is vague and unspecific, with the result that it does not fulfil the conditions laid down in Article 76(e) of the Rules of Procedure, to which Article 156(4) of those rules refers. Consequently, the second head of claim must be declared inadmissible (see, to that effect, order of 17 December 2009 in Vereniging Milieudefensie et Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09 R, EU:T:2009:526, paragraph 36 and the case-law cited). Substance 34 Article 156(3) of the Rules of Procedure provides that applications for interim measures must state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for. It is thus open to the judge hearing an application for interim measures to order the suspension of the operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable damage to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied (see order of 7 December 2015 in POA v Commission, T‑584/15 R, EU:T:2015:946, paragraph 11 and the case-law cited). 35 In the context of that overall examination, the judge hearing the application has broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed. Where appropriate, the judge hearing such an application must also weigh up the interests involved (see order in POA v Commission, cited in paragraph 34 above, EU:T:2015:946, paragraph 12 and the case-law cited). 36 It should be added that Article 278 TFEU establishes the principle that actions do not have suspensory effect, acts adopted by the institutions of the Union being presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim relief may order the suspension of operation of an act challenged before the Court or prescribe any interim measures necessary (see order in POA v Commission, cited in paragraph 34 above, EU:T:2015:946, paragraph 10 and the case-law cited). 37 In the present case, it is necessary, first of all, to identify the exact scope of the application for interim measures. Although the applicant indicated, in that application, that the recovery ordered by the Commission in the Debit Note initially concerned EUR 1 770 419.29, it already indicated in that application that, following several setoffs carried out by the Commission, the remaining balance of the Debit Note amounted to EUR 835 999.81 as of 14 January 2016. Subsequently, in the addendum to the application for interim measures lodged on 15 January 2016, the applicant stated that, following two further setoffs on that same date, the Commission’s claim had been reduced to EUR 587 774.81, which the Commission confirmed in its observations of 22 January 2016. 38 It follows that the financial stake in the present proceedings for interim measures consists in the amount of EUR 587 774.81, approximately a third of the amount of EUR 1 770 419.29 that the Commission initially sought to recover. The applicant fears that it will be left insolvent if the Commission is authorised — in the event that the application for interim measures is rejected — to force it to reimburse that EUR 587 774.81. 39 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied. Urgency 40 The applicant submits that the interim measures requested are vital in order to protect it from serious and irreparable damage. The contested recovery of EUR 1 770 419.29 would translate directly into a considerable loss of money: material damage which would greatly exceed its financial resources. That amount represents 90% of its annual turnover and exceeds the amount of its annual payments for wages and social insurance. Accordingly, the recovery of such a high amount would inevitably bring about its insolvency. The non-material damage in the present case would be equally serious and irreparable, in that putting the contested recovery into effect would damage the applicant’s reputation, by leading to the loss of a significant market share within the tight market for project management in the health sector. 41 As regards the alleged material damage, the applicant emphasises the particular nature of its financial situation. It submits that most of its financial resources are advance payments (prefinancing) for future work in specific EU-funded research projects. For that reason, the applicant could dispose of these funds only in respect of the specific project for which they are allocated, whereas the Commission uses them for the contested recovery. For that reason, the contested recovery and its implementation through setoffs have a particularly great financial impact. As almost all of the applicant’s business activities are linked to the management of EU-funded projects, the applicant possesses no significant financial resources other than those dedicated to specific projects. 42 The applicant indicates that, on 4 January 2016, its bank accounts showed a positive balance of EUR 1 174 545.94, a very large part of which, namely EUR 1 121 781.56, is dedicated to specific projects. It adds that it has already paid the costs referred to in the contested audit findings through the specific financial measures provided for that purpose. Consequently, the amount to be recovered, EUR 1 770 417.29, could be paid only out of the applicant’s financial reserves, but it currently does not have such reserves. It not only lacks the money to pay the amount sought to be recovered but also the money to pay for the future costs of ongoing projects affected by the setoffs. As evidence, it refers to its balance sheets and accounts, as well as those of its managing company, GABO:mi Verwaltungs GmbH. 43 According to the applicant, the serious risk of insolvency is confirmed by the overview of its liquidity and of its mandatory monthly costs (wages, social insurance, rent and telecommunications) which amount to EUR 170 173.50. Those monthly costs will rapidly reduce the applicant’s liquidity, inasmuch as the setting off will be carried out on any incoming payments until at least August 2016, with the result that the applicant’s liquidity will be fully consumed by those costs by July 2016 at the latest. If the applicant continues to be obliged to pay the remaining recovery balance, while having to pay its monthly costs without incoming payments, the applicant’s managing directors will be legally obliged to apply for the opening of insolvency proceedings, unless the requested interim measures are granted. Under German insolvency law, a managing director is obliged in the event of over-indebtedness or inability to pay debts to file, without undue delay, an application for the opening of insolvency proceedings entailing the liquidation of the company’s assets. The applicant will therefore be faced with an imminent threat of insolvency if the requested interim measures are not granted. 44 As regards the alleged non-material damage, the applicant submits that the contested recovery has already caused irreparable damage to the applicant’s reputation and credibility, the Commission having begun in August 2015 to suspend and set off all payments to the applicant, informing the coordinators of each such measure. According to the applicant, the market for the management of collaborative research projects in the health sector is tight, with around 80% of all EU health projects being coordinated by a few large research institutions, most of which are clients of the applicant. That small group of highly specialised coordinators will of course discuss all the latest developments within the market for collaborative research projects. The applicant’s good reputation within that peer group has been the driving force behind the applicant’s increasing involvement in those projects in the past years. These coordinators look for smooth project management without any administrative complications. If they can no longer expect such management from the applicant, they will turn to its competitors. 45 According to the Commission, however, the applicant has not demonstrated that the condition relating to urgency is satisfied in the present case. 46 In this connection, it must be recalled that, according to settled case-law, the urgency of an application for interim measures must be assessed in relation to the necessity of an interim order to prevent serious and irreparable damage to the party applying for interim measures. It is for that party to adduce solid evidence that it cannot wait for the outcome of the main proceedings without having to suffer personally damage of that kind. While the imminence of the alleged damage does not have to be proved with absolute certainly, its occurrence must nevertheless be foreseeable with a sufficient degree of probability (see order of 17 December 2015 in Lysoform Dr. Hans Rosemann and Others v ECHA, T‑543/15 R, EU:T:2015:1008, paragraph 29 and the case-law cited). In addition, the suspension of operation of an EU act is justified only if that act is the decisive cause of the serious and irreparable damage alleged (see, to that effect, order of 7 March 2013 in EDF v Commission, C‑551/12 P(R), ECR, EU:C:2013:157, paragraph 41 and the case-law cited). 47 In the present case, the applicant invokes two categories of serious and irreparable damage: financial damage and non-material damage. 48 As regards the alleged non-material damage, first of all, it must be noted that, as can be seen from the applicant’s own statements, that damage has already occurred. According to the applicant, the Commission has informed the coordinators of collaborative research projects in the health sector of each setoff it has carried out vis-à-vis the applicant, which has damaged its reputation and credibility. The purpose of proceedings for interim relief is not to repair damage which has already occurred, for such damage can no longer be avoided by the grant of the requested interim measures (see paragraph 22 above). Furthermore, although the setoffs and their notification to the coordinators in question are the decisive cause of the non-material damage alleged, they are not covered by the application for interim measures. 49 In any event, the setoffs are the subject matter of the main action brought by the applicant. In those circumstances, even if the applicant’s reputation were indeed damaged by those acts, it is settled case-law that their annulment at the conclusion of the main proceedings would constitute adequate compensation for the alleged non-material damage (see, to that effect, orders of 25 March 1999 in Willeme v Commission, C‑65/99 P(R), ECR, EU:C:1999:176, paragraphs 14, 61 and 62; 22 July 2010 H v Council and Others, T‑271/10 R, EU:T:2010:315, paragraph 36; and 18 November 2011 EMA v Commission, T‑116/11 R, EU:T:2011:681, paragraph 21). 50 It follows that the alleged non-material damage does not justify the grant of the requested interim measures. 51 As regards the damage of a financial nature that the applicant fears it will suffer, it is settled case-law that such damage is in principle not irreparable, since it can ultimately be the subject of financial compensation, unless it appears that, failing those measures, the party seeking the interim measures would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially, in the light of the size and turnover of its undertaking and the characteristics of the group of which, by virtue of its shareholding structure, it directly or indirectly forms part (see, to that effect, orders of 19 December 2013 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P-R, EU:C:2013:882, paragraph 20; EDF v Commission, cited in paragraph 46 above, EU:C:2013:157, paragraph 54, and POA v Commission, cited in paragraph 34 above, EU:T:2015:946, paragraph 25 and the case-law cited). 52 Thus, if the judge hearing an application for interim measures takes account of the resources available to the group to which the applicant for interim measures belongs, taken as a whole, it may lead to the conclusion that the condition relating to urgency is not satisfied despite the fact that the applicant company, taken individually, may become insolvent. It must therefore be assessed whether the alleged damage can be regarded as serious and irreparable in the light of the characteristics of the group to which the applicant belongs (see, to that effect, orders of 10 June 2011 in Eurallumina v Commission, T‑207/07 R, EU:T:2011:265, paragraph 32 and the case-law cited, and 6 May 2014 Frucona Košice v Commission, T‑103/14 R, EU:T:2014:255, paragraph 53 and the case-law cited). 53 In order to determine whether those conditions are fulfilled, the judge hearing the application for interim measures must, according to settled case-law, have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party must produce, with supporting documentation, an accurate overall picture of its financial situation (see, to that effect, order in POA v Commission, cited in paragraph 34 above, EU:T:2015:946, paragraph 23 and the case-law cited). 54 In addition, the essential points of facts and law enabling the judge hearing the application for interim measures to establish such a picture must be apparent from the text of the application itself, enabling, by itself, the defendant to prepare its observations and the judge to rule on the application, if necessary, without any further information. Taking into account the expeditiousness required, by their very nature, in proceedings for interim relief, it may reasonably be required of the party seeking interim measures to present, save in exceptional cases, at the time of lodging the application, all the evidence supporting that application, so as to allow the judge hearing the application to assess, on that basis, whether the application is well founded (see order of 20 April 2012 in Fapricela v Commission, C‑507/11 P(R), EU:C:2012:231, paragraphs 52 to 54 and the case-law cited). 55 In the present case, in order to assess the applicant’s financial power, it must be recalled that the applicant presents itself under the legal form of a ‘GmbH & Co. KG’ of German law, that is to say, a limited partnership (KG) created by an agreement between, on the one hand, GABO:mi Verwaltungs-GmbH, a limited liability company, as the general partner and, on the other hand, Mr S., as the limited partner, it being noted that Ms F. is a partner and manager of GABO:mi Verwaltungs-GmbH. The judge hearing the application for interim measures is therefore faced with a group composed of the applicant, as the general partner, of GABO:mi Verwaltungs-GmbH and of Mr S. and Ms F., the latter two natural persons being members of the group as partners. 56 In those circumstances, the conditions governing the applicant’s membership of that group and the characteristics of that group, in particular the financial capacities available to it as a whole, are essential factors in examining the urgency of the application for interim measures. Consequently, those factors must be presented by the applicant in that application, even as regards Mr S. and Ms F. The case-law relating to the concept of a group applies not only to legal persons, but also to natural persons who are part of a group as shareholders or partners, though they are not themselves companies (see, to that effect, orders of 7 December 2010 in ArcelorMittal Wire France and Others v Commission, T‑385/10 R, EU:T:2010:502, paragraph 53; 21 June 2011 MB System v Commission, T‑209/11 R, EU:T:2011:297, paragraph 32 and the case-law cited; and 10 June 2014 Stahlwerk Bous v Commission, T‑172/14 R, EU:T:2014:558, paragraphs 20 and 33). 57 Although the application for interim measures and its annexes contain information concerning the financial situation of the applicant and of GABO:mi Verwaltungs-GmbH, it does not contain any evidence relating to the financial situation of Mr S. and of Ms F., whose financial situation should have been put before the judge hearing the application for interim measures. 58 The applicant disputes this, emphasising that there is no joint and several liability on the part of Mr S. and Ms F., those partners not being subject to any payment obligations or obligations to make additional contributions under the company’s articles of association or partnership agreement. The same is true with regard to liability for any deficits, shortfalls or missing amounts, in order to avoid any risk of over-indebtedness under insolvency law or an inability to pay debts. According to the applicant, to force its partners to employ all possible financial means, contrary to the relevant statutory requirements, would reduce any legal form of limited liability company to an absurdity and compromise the proper administration of justice. 59 That argument cannot be accepted. 60 The taking into consideration of the financial strength of the group to which the applicant company belongs is based on the idea that the objective interests of that company are not independent of those of the natural or legal persons controlling it or belonging to the same group. The serious and irreparable nature of the alleged damage must therefore be assessed at the level of the group made up of those persons. That coincidence of interests is justification for not assessing the interest in continuing to trade of the company concerned independently of the interest in its continued existence of those controlling it or belonging to the same group. In addition, the crucial question when financial circumstances are assessed is whether the company claiming that it will suffer serious and irreparable damage has other potential sources of income that might help it to avert that damage. If so, this must be taken into account by the judge hearing the application for interim measures, in view of the strictly exceptional nature of the grant of interim measures (see paragraph 36 above), whether it is potential income from particular economic activities or assistance from other persons (see, to that effect, order in Eurallumina v Commission, cited in paragraph 52 above, EU:T:2011:265, paragraphs 33 and 38 and the case-law cited). 61 Inasmuch as the applicant submits that the partners Mr S. and Ms F. may not lawfully be deprived of the protection of limited liability conferred by German company law, it fails to have regard to the fact that a distinction has to be drawn between, on the one hand, the legal obligation to pay imposed on a natural or legal person and, on the other, the financial strength possessed by that person for the purpose of performing his duty to pay. Consequently, although the other members of the group to which the applicant belongs are not legally obliged jointly and severally to reimburse the amount which the Commission seeks to recover from the applicant, the judge hearing the application for interim measures must ascertain, in relation to the concept of a group, whether those members have both the financial resources necessary to support the applicant as well as an objective interest in lending such support (see, to that effect, order in Frucona Košice v Commission, cited in paragraph 52 above, EU:T:2014:255, paragraph 57 and the case-law cited). 62 Moreover, the concept of a group also applies as regards infringements of the competition rules, when a company on which a fine has been imposed for having committed such an infringement submits, in proceedings for interim measures, that it is unable to pay the fine. If that company belongs to a group, the consideration by the judge hearing an application for interim measures of the overall financial situation of the group in no way implies that the fine or the liability for the infringement is imputed to a third party (see, to that effect, order in ArcelorMittal Wire France and Others v Commission, cited in paragraph 56 above, EU:T:2010:502, paragraph 43 and the case-law cited). 63 In so far as the reliance on the limitations of liability under German company law must be interpreted as meaning that the partners Mr S. and Ms F. refuse to support the applicant, it must be recalled that unilateral refusal by a group to provide financial support to a company in that group is not enough to preclude the financial situation of the group as a whole from being taken into account. The extent of the damage alleged by an individual company belonging to a group cannot, when its interests and those of its partners or of other companies belonging to the same group objectively overlap, depend on the unilateral intent of those partners or companies (see, to that effect, order of 30 April 2010 in Ziegler v Commission, C‑113/09 P(R), EU:C:2010:242, paragraph 46). In that respect, the only relevant question that arises is whether there are legal obstacles — in particular under insolvency law or commercial law — preventing Mr S. and Ms F. granting the financial support in question (see, to that effect, orders of 14 December 1999 in DSR-Senator Lines v Commission, C‑364/99 P(R), EU:C:1999:609, paragraphs 52 to 54; 14 December 2011 Alcoa Trasformazioni v Commission, C‑446/10 P(R), EU:C:2011:829, paragraphs 34 and 35; see, by analogy, order of 14 June 2012 in Qualitest FZE v Council, C‑644/11 P(R), EU:C:2012:354, paragraph 42). 64 In the present case, the applicant has not called into question the identical nature of the objective interests pursued within the group to which it belongs. Consequently, there is no reason to conclude that those interests are not identical. Moreover, the applicant’s mere assertion that the limited liability of its partners is intended to avoid ‘over-indebtedness under insolvency law or an inability to pay debts’ appears too general and vague to establish the existence of a legal obstacle that would prevent them from providing financial assistance to the applicant. In any event, that assertion is not sufficiently supported by concrete evidence concerning the legislation invoked (see, to that effect, order of 15 January 2009 in Ziegler v Commission, T‑199/08 R, EU:T:2009:5, paragraph 69). 65 Consequently, the applicant has not established that the condition relating to urgency is satisfied, in view of the case-law relating to the consideration of the characteristics of the group to which it belongs. 66 For want of information concerning the financial situation of Mr S. and Ms F., the judge hearing the application for interim measures cannot consider it impossible, in particular, that those partners may be in a position to support the applicant financially, whether by lending it the necessary funds or by procuring for it a corresponding loan, so that it could pay its remaining debt of EUR 587 774.81 without risking insolvency, given that, in January 2016, it had EUR 1 174 545.94 in its bank accounts and that the payment could be carried out, as the Commission has pointed out, by way of setoff against new payments — prefinancing, interim payments or final payments — to be paid to the applicant, in addition to its abovementioned bank assets. 67 Although those findings suffice to justify the dismissal of the application for interim measures (see paragraph 34 above), it should also, given the particular circumstances of the present case, be determined whether the applicant has established the existence of a prima facie case. Prima facie case 68 According to the case-law, the condition relating to the establishment of a prima facie case is satisfied when at least one of the pleas in law put forward by the applicant for interim measures in support of the main action appears, prima facie, not unfounded, in that it reveals the existence, at the interim proceedings stage, of a major legal disagreement whose resolution is not immediately obvious. Because the purpose of the interim proceedings is to guarantee that the final decision to be taken in the main proceedings is fully effective, in order to avoid a lacuna in the legal protection ensured by the Court, the court hearing the application for interim relief must restrict itself to assessing ‘prima facie’ the merits of the pleas put forward in the main proceedings in order to ascertain whether there is a sufficiently large probability of success of the action (see, to that effect, orders of 10 September 2013 in Commission v Pilkington Group, C‑278/13 P(R), ECR, EU:C:2013:558, paragraph 67 and the case-law cited, and 8 April 2014 Commission v ANKO, C‑78/14 P-R, ECR, EU:C:2014:239, paragraph 15 and the case-law cited). 69 In the present case, it must be recalled that, although the applicant’s main action is, in essence, aimed at acts by which the Commission intends to recover the amount of the debt that it considers the applicant owes to it, amounting to EUR 1 770 417.29, that debt, as a result of various setoffs carried out in the meantime, has been reduced to EUR 587 774.81. It therefore suffices to examine the existence of a prima facie case in relation to that remaining debt, that is to say in relation to the costs declared by the applicant in that amount which the Commission found ineligible and therefore refused to finance. In that respect, without providing further more specific figures, the applicant submits that the grounds of ineligibility found in the final audit reports may be ordered on the basis of the allocation of various costs to the following categories: ‘Central travel budget’ (25.5%), ‘Indirect by nature’ (48.3%) and ‘Miscellaneous’ (26.2%), those percentages referring to the overall sum of approximately EUR 1.85 million (see paragraph 3 above). 70 In those circumstances, for the purposes of the present interim proceedings, it suffices to examine the eligibility of one of the categories of costs whose financial impact, expressed as a percentage, alone covers the remaining amount owed by the applicant. In that respect, it can be seen that, as regards the category ‘Indirect by nature’, the Commission declared ineligible costs amounting to almost EUR 900 000 (48.3% of the EUR 1.85 million). If the complaints against that refusal should be declared prima facie unfounded, the Commission would rightly proceed with the recovery of the remaining amount owed by the applicant, amounting to EUR 587 774.81. 71 First of all, the applicant states that it indicated to the Commission on numerous occasions, for example, in a letter of 7 August 2015 annexed to its application, that all the expenditure submitted had been properly incurred by it and were eligible costs pursuant to the Seventh Framework Programme Grant Agreements. It expressly refers to those submissions and to all further observations submitted in the audit procedure. 72 Next, the applicant submits that there is no legal basis for the auditors’ classification of costs as ‘indirect by nature’, since it follows from Article II.15(1) of Annex II to the Seventh Framework Programme Grant Agreements that ‘direct costs are all those eligible costs which can be attributed directly to the project and are identified by the beneficiary as such, in accordance with its accounting principles and its usual internal rules’. It therefore concludes that, if it is possible according to the accounting principles of the beneficiary and his documentation on the respective work to assign certain costs to a specific project, then these costs have to be classified as direct costs. According to the applicant, that is exactly the case with all the costs that it declared to the Commission and which the latter rejected as indirect costs ‘by nature’, particularly with regard to the hours worked by the company managers, administrative assistants and other staff. 73 The applicant emphasises that all the productive hours worked — regardless of by whom — were recorded with timesheets, which were provided to the auditors and which meet all the necessary requirements stipulated on pages 55 and 56 of the 18 March 2013 version of the Guide to Financial Issues relating to FP7 Indirect Actions (‘the Guide’). By way of example, it refers to timesheets annexed to the application for interim measures. The applicant submits that, contrary to what is claimed by the Commission, those time recordings are not ‘unreliable’. With these records, all the hours worked can be directly attributed to specific projects. The description of the work done is clear and not misleading. 74 In order to prove the reliability of the time recordings, the applicant refers to letters expressing the coordinators’ appreciation for the work of the applicant’s directors, senior managers and its entire managing staff, all of whom contributed directly to the success of various projects. As further proof of the reliability of the time recordings and the hours worked for specific projects, the applicant points to its calculations on the basis of the EU CORDIS database, which show that the applicant’s project management is far more cost-efficient and economic than that of the its competitors. In addition, as can be seen from various statements gathered during the audit procedure, the applicant’s employees confirm the specific work carried out by the applicant’s managing directors. 75 The applicant adds that its two managing directors, besides their regular earnings, also enjoyed a company car and the payment of all related costs, as well as — in certain years — bonus payments. All these extra emoluments were not taken into account in the productive hours worked for certain projects. They formed part of the directors’ remuneration for their overall work for the company. Even aside from that remuneration, the eligibility of the personnel costs paid by the owner of a small or medium-sized enterprise (SME) is clearly noted in the Guide: ‘either the owner receives a salary from the SME, in which case the salary is an eligible cost following normal rules, or the owner does not receive a salary for its work for the SME, and therefore no record of its personnel costs can be found in the accounts of the company’. The applicant argues that this is exactly how it proceeded: its managing directors received a salary and recorded all hours worked in accordance with the Guide. Those hours can all be attributed to specific projects. 76 In that respect, it should be recalled that, according to a fundamental principle of European Union financial aid, the Union may subsidise only expenses that have actually been incurred. Accordingly, in order for the Commission to be able to carry out checks, the beneficiaries of such aid must show that the costs attributed to subsidised projects are genuine, the provision by those beneficiaries of reliable information being indispensable for the successful operation of the system of control and evidence established in order to check whether the conditions for the grant of aid are satisfied. It is not sufficient, therefore, to show that a project has been carried out for the allocation of a specific subsidy to be justified. The beneficiary of the aid must, in addition, produce evidence that he has incurred the expenses declared in accordance with the conditions laid down for the grant of the aid concerned, with only those expenses which are properly justified being capable of being regarded as eligible. His obligation to satisfy the prescribed financial conditions is even one of his essential commitments and accordingly determines the allocation of European Union financial aid (see judgment of 11 September 2014 in Commission v ID FOS Research, T‑170/08, EU:T:2014:772, paragraph 57 and the case-law cited). 77 Consequently, first of all, it is necessary to reject as devoid of all evidential value the letters from coordinators mentioning the applicant’s contribution to the success of various projects, the declarations of its own employees confirming that success and the fact that it managed its projects in a particularly cost-efficient and economic manner (see paragraph 74 above). Those pieces of evidence are too general and, moreover, as regards the applicant’s employees, are provided by persons exposed to a risk of a conflict of interests, whereas the eligibility of the various expenses must be demonstrated by accounting documents which comply with the technical requirements laid down for the award of the grant in question and are capable of being reviewed in an audit. In addition, the applicant itself acknowledges that the applicable eligibility criteria require proof, inter alia, that the declared costs were incurred during the duration of the project, were determined according to the usual accounting and management principles and practices of the beneficiary, were used for the sole purpose of achieving the objectives of the project and its expected results in a manner consistent with the principles of economy, efficiency and effectiveness, were recorded in the accounts of the beneficiary and were indicated in the estimated overall budget. 78 Next, inasmuch as the applicant submits that the Commission’s auditors should have accepted the expenses it invoiced for its staff as eligible direct costs, in particular the expenses declared by its two directors and their administrative assistants, it must be pointed out that the application for interim measures does not contain any specific information regarding the various grounds on which the costs in question were not found to be eligible in the audit reports in question, or any specific argument against each of those grounds. The applicant merely refers to documents annexed to the application for interim measures, in particular to observations which it claims to have submitted in the audit procedure. Such a manner of setting forth a line of argument does not suffice to establish the existence of a prima facie case. 79 It is settled case-law that, in the interest of legal certainty and sound administration of justice, the main factual and legal elements on which an application for interim measures is based should be clear and understandable from its very wording, for that document must, by itself, enable the defendant to prepare its observations and the judge hearing the application for interim relief to reach a decision, if necessary without any other supporting information (see paragraph 54 above). Whilst specific points in this text can be supported and supplemented by references to specific passages in the documents attached, a general reference to other documents, even those annexed to the application, cannot compensate for the lack of essential elements in the application (see order of 20 June 2014 in Wilders v Parliament and Others, T‑410/14 R, EU:T:2014:564, paragraph 10 and the case-law cited; see also, to that effect, order in Ziegler v Commission, cited in paragraph 63 above, EU:C:2010:242, paragraph 13). 80 Moreover, point 264 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court (OJ 2015 L 152, p. 1) expressly states that the application for interim measures must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto. 81 It must be added that the applicant’s argument that the eligibility of the costs declared for the work of its staff is supported by timesheets which are in accordance with the Guide is not supported by sufficient evidence. First, the Guide invoked by the applicant was not annexed to the application for interim measures. Secondly, that Guide applies only to grants awarded under the seventh framework programme. As regards grants under the sixth framework programme, the applicant has not relied on any specific text in order to demonstrate the reliability of its timesheets. Lastly, there are only three timesheets annexed ‘by way of example’ to the application for interim measures, which do not provide the judge hearing the application for interim measures with a comprehensive and accurate picture of the time recording carried out by the applicant, for the purpose of examining the reliability of the method which it used. 82 It follows that the applicant has not, prima facie, been able to rebut, before the judge hearing the application for interim measures, the findings of the Commission’s auditors according to which, first, the applicant’s time recording system was unreliable, since there was no appropriate monitoring over the total amount of hours claimed or over the projects in which they were claimed, and secondly, there were multiple inconsistencies between the hours recorded and those claimed. Nor, in addition, has the applicant validly contradicted the Commission’s allegations that it failed to record all the hours worked by its two managing directors and their assistants in accordance with the relevant accounting requirements. 83 Lastly, the Commission submits, without being contradicted by the applicant, that the audits revealed that, during the five financial years covered by the audits, both managing directors recorded all of their productive hours to EU projects exclusively and did not record any time on activities of general administration and management necessary to run a company, such as staff recruitment, personnel management, contact with potential consumers, promotion of the company, general administration, etc., or on activities related to other projects, such as preparation of new proposals, negotiation activities, etc. As the Commission rightly notes, it cannot be expected that EU contributions to a particular project which it subsidises will cover all the costs of running the beneficiary company, such as those relating to general administration and management activities or to other projects. 84 In those circumstances, it is apparent that the applicant has not established a prima facie case as regards the fact that the personnel costs which it had declared were declared ineligible by the Commission, with the result that the Commission must be regarded as being contractually entitled to proceed with the recovery of the remaining EUR 587 774.81 owed by the applicant. 85 It follows from the foregoing that the application for interim measures must be dismissed for lack of urgency and failure to make out a prima facie case, and it is not necessary to weigh up the interests involved. On those grounds, THE PRESIDENT OF THE GENERAL COURT hereby orders: 1. The application for interim measures is dismissed. 2. The order of 18 January 2016 delivered in Case T‑10/16 R is cancelled. 3. The costs are reserved. Luxembourg, 6 April 2016. E. Coulon M. Jaeger Registrar President * Language of the case: English.