Order — ECLI:EU:T:2010:32
Date: 2010-02-08
Language of the case: Italian
Court formation: Fifth Chamber
Subject matter: External relations
Procedure: Action for annulment;Action for damages
Origin: Italy

summary of the pleas in law on which it is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to ensure legal certainty and the sound administration of justice it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, but coherently and intelligibly, in the application itself (orders in Case T‑85/92 De Hoe v Commission [1993] ECR II‑523, paragraph 20; and Case T‑154/98 Asia Motor France and Others v Commission [1999] ECR II‑1703, paragraph 49; and the judgment in Case T‑277/97 Ismeri Europa v Court of Auditors [1999] ECR II‑1825, paragraphs 28 and 29). 90 As regards a claim for compensation in respect of the loss allegedly suffered by reason of the Commission’s suspension of all payments to the applicant, the latter must, in order to fulfil its abovementioned obligations, set out in its application the legal and factual particulars which give rise to the Commission’s alleged obligation to make payments to it or, at very least, to inform it in good time of the decision to suspend payments. 91 Those details are needed, more than anything else, in order to permit the Court to ascertain whether the action actually deals with the non-contractual liability of the Community by reason either of an unlawful act or of a lawful act, or if in fact it deals with the contractual liability of the Community, in which case, as follows from the case-law referred to in paragraph 58 above, the Court has jurisdiction to hear the action only if the contracts at issue contain a clause conferring jurisdiction on it in regard to disputes arising from the performance of those contracts. 92 It must be stated that, although the applicant refers, in its application, to an alleged suspension of all payments to it, decided on by the Commission as early as November 2005, it does not specify the payments to which it would have been entitled in the absence of that suspension and, even less, whether entitlement to them arose from the contracts concluded between it and the Commission or whether it arose directly from applicable provisions which were not cited elsewhere in the application. It follows that, as regards the claim for damages, the application does not meet the minimum requirements laid down in Article 44(1)(c) of the Rules of Procedure. 93 The fact that, in the application, the applicant raises solely the non‑contractual liability of the Community and the alleged breach, by the Commission, of the principles of good administration and transparency does not cast doubt on those conclusions. 94 In a contractual dispute, the mere mention of legal rules which do not arise from a contract but which are binding on the parties does not alter the contractual nature of the dispute and, as a consequence, permit the party which relies on them to evade the jurisdiction of the competent court. If it were otherwise, the nature of the dispute and, consequently, the court having jurisdiction, would change according to the rules relied on by the parties, something which would run counter to the rules of the various courts governing jurisdiction ratione materiae (judgment of 20 May 2009 in Case C‑214/08 P Guigard v Commission, not published in the ECR, paragraph 43). 95 Furthermore, the institutions are subject to obligations flowing from the general principle of sound administration in regard to the public only in the exercise of their administrative responsibilities. On the other hand, when the relationship between the Commission and the applicant is clearly contractual, the latter can complain, in regard to the Commission, only of breaches of the terms of the contract or of the law applicable to it (see, to that effect, the judgment of 3 June 2009 in Case T‑179/06 Commission v Burie Onderzoek en advies, not published in the ECR, paragraph 118). 96 It follows from those considerations that the applicant cannot merely invoke the non-contractual liability of the Community and the alleged breach by the Commission of the principles of sound administration and transparency in the application, but must specify the source, contractual or non-contractual, of the obligations which the Commission allegedly infringed when it decided to suspend all payments to the applicant and failed, for a long period of time, to inform the applicant of that suspension. 97 It follows from the foregoing that the claim for damages is inadmissible and must be dismissed. 98 That conclusion is not called into question by the argument put forward by the applicant in the document lodged on 1 December 2009 (see paragraph 35 above). That argument is irrelevant to the claim for damages since it concerns the audit carried out by an external auditor at the Commission’s request and therefore relates to a period after that concerned by the claim for damages. According to the applicant’s own statements, the Commission’s alleged wrongful conduct ended with the letter of 3 May 2006 from EuropeAid informing the applicant that all payments to it had been suspended. However, the audit commenced only on 12 July 2006 (see paragraphs 21 and 23 above). 99 In any event, even if the application is to be understood as meaning that the payments covered by the suspension allegedly decided in November 2005 arose under the 34 contracts concerned by the audit ordered by the Commission, it must be pointed out, on the one hand, that, in regard to the 22 contracts concluded between the Commission and the applicant, mentioned in paragraph 1 above, an alleged breach, by the Commission, of its obligations under those contracts would cause the Commission to incur contractual liability, giving rise to a dispute which is contractual in nature and which is outside the jurisdiction of the Court in the absence of a clause conferring jurisdiction over that dispute on it. 100 On the other hand, with regard to the 12 contracts referred to in paragraphs 14 to 18 above, concluded between the applicant and certain ACP States and financed by the EDF, it is true that the considerations set out in paragraphs 60 and 62 above cannot affect the additional remedies available to any person against the Commission under the procedures laid down in Article 235 EC and the second paragraph of Article 288 EC (Case 33/82 Murri v Commission [1985] ECR 2759, paragraph 35). 101 However, it has been decided that, where a contractual dispute between an ACP State and the other party to a contract financed by the EDF has not been settled earlier on an amicable basis or by one of the procedures laid down in the contract, such as arbitration, the other party to the contract is unable to establish that the Commission’s action in regard to that dispute caused it to sustain loss distinct from the loss in respect of which it ought to have sought compensation from the ACP State in question in accordance with appropriate procedures. In such a case, an action for damages brought against the Commission under Article 235 EC and the second paragraph of Article 288 EC must be dismissed inasmuch as the applicant has failed to establish the existence of a causal link between the conduct on the part of the Commission which is being complained of and the loss allegedly suffered (see, to that effect, Murri v Commission, paragraph 100 above, paragraphs 36 to 39, and International Procurement Services v Commission, paragraph 69 above, paragraphs 58 to 61). 102 That is precisely the case here in regard to the 12 contracts mentioned above which were concluded between the applicant and various ACP States. According to the applicant’s own statements, the loss to which the claim for damages relates arises from the suspension of payments to it of amounts which, by the conclusion of the contracts, the ACP States had undertaken to pay if all the conditions laid down in regard to such payments were fulfilled. 103 However, it was for the applicant, and the applicant may still do so if it considers itself entitled, to claim from the ACP States concerned, in accordance with appropriate procedures, compensation for any loss resulting from an alleged breach, by those States, of their obligations under the contracts in question. Consequently, even supposing that the claim for damages could be understood as seeking compensation for loss allegedly suffered by the applicant as a result of suspension of the payments provided for in the 12 contracts in question, it must be dismissed as manifestly unfounded in law. 104 It follows from all of the foregoing considerations that the claim for damages must also be rejected and that, as a consequence, the action must be dismissed in its entirety. Under those circumstances, there is no need to order the measures sought by the applicant in its applications of 2 July and 30 September 2009 (paragraphs 32 and 34 above), regardless of their exact legal classification, that is to say, whether they are measures of organisation of procedure or measures of inquiry. According to the applicant, the purpose of those measures is to provide further details as to the nature of the instructions given by the Commission to the external auditor tasked with carrying out the audit, a question which is irrelevant to the resolution of the dispute. Costs 105 Under Article 87(2) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby orders: 1. The action is dismissed. 2. Alisei is ordered to pay the costs. Luxembourg, 8 February 2010. E. Coulon M. Vilaras Registrar President * Language of the case: Italian.