Judgment;Information — ECLI:EU:C:2023:217
Date: 2023-03-16
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Research and technological development
Procedure: Appeal - unfounded;Arbitration clause
Origin: Germany

summary of those pleas in law. 47 On that last point, it must also be recalled that, according to the settled case-law of the Court of Justice, the ‘summary of the pleas in law’ which must be stated in any application, as provided for by the articles referred to in the preceding paragraph, means that the application must specify the nature of the grounds on which the application is based (judgment of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraph 67 and the case-law cited). 48 Thus, for an action before the General Court to be admissible, it is necessary, in particular, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the provisions recalled in paragraph 46 of the present judgment, must appear in the application (judgment of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraph 68 and the case-law cited). 49 It follows that an applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, and the General Court cannot be obliged, due to the lack of structure in the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party (see, to that effect, judgment of 12 November 2020, Fleig v EEAS, C‑446/19 P, not published, EU:C:2020:918, paragraph 61). 50 It should, lastly, be recalled that the requirements laid down in Article 76(d) of the Rules of Procedure of the General Court are intended to enable, on the one hand, the defendant to prepare its defence and, on the other, the General Court to exercise its power of review, and, in that context, to ensure that the General Court does not rule ultra petita or fail to rule on a claim (order of 30 September 2021, González Calvet v SRB, C‑27/21 P, not published, EU:C:2021:789, paragraph 30). 51 Having recalled, in paragraphs 35 to 38 of the order under appeal, its established case-law concerning the requirements referred to in Article 76(d) of its Rules of Procedure, such case-law merely reflecting the legal principles derived from the case-law of the Court of Justice stated in paragraphs 47 to 50 of the present judgment, the General Court set out, in paragraphs 39 to 48 of that order, the reasons for its finding in paragraph 49 of the order, first, that the action was vitiated by a lack of consistency and, second, that the essential elements of fact and law on which the action was based were not apparent from either the application or the reply, leading it to conclude, therefore, that the application manifestly did not satisfy those requirements. 52 The appellant challenges the reasons set out in paragraphs 39 to 48 of the order under appeal and the findings of the General Court, as well as the conclusion drawn by the General Court in paragraph 49 of that order. – The General Court’s findings concerning the absence of essential elements of fact and law in the application 53 It is apparent from the application that the action which the appellant brought before the General Court was based on Article 272 TFEU and sought an order that the Commission be required to pay, first, the sum of EUR 1 418 644.60 in respect of eligible costs incurred by the appellant in the period from 1 August 2015 to 30 April 2016 in the context of the execution of 37 projects financed under grant agreements concluded in particular by the Commission, together with default interest, and, second, the sum of EUR 262 037.22 in respect of eligible costs incurred by the appellant in the period from 1 May 2016 to 30 June 2016 in the context of the execution of 38 projects financed under grant agreements concluded in particular by the Commission, together with default interest. 54 All of those costs were, according to the appellant, accepted by the Commission, which set off the claims corresponding to those costs against the appellant’s debt of EUR 1 770 417.29 to the Commission stemming from the debit note. However, in the appellant’s opinion, those set-offs are void under German insolvency law, which, according to the appellant, is applicable in this case by virtue of Article 4(2) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1), read in conjunction with Article 6(2) of that regulation. 55 That said, it should be noted, in the first place, that although the appellant’s claim for payment was based on Article 272 TFEU, as the General Court found in paragraphs 40 to 43 of the order under appeal, it did not identify the clauses of the relevant grant agreements that constituted the legal basis of its alleged right to payment of the sum claimed. 56 In particular, in so far as the sums claimed corresponded to the eligible costs incurred by the appellant in two specific periods, the first, the period between 1 August 2015 and 30 April 2016, and the second, the period from 1 May 2016 to 30 June 2016 (‘the periods at issue’), in the context of 38 different projects, the appellant should have identified, in respect of each project, the clauses relating to the procedures for claiming payment of those costs from the Commission. 57 The appellant, however, merely stated in general terms, in paragraphs 48 and 57 of the application, that all of the costs claimed fulfilled the eligibility criteria mentioned in the agreements entered into by the parties, referring to Annexes 6 to 10 to the application, and, in paragraphs 45, 48 and 57 of the application, it referred to ‘Article II.14.1 of the grant agreements’, in which eligible costs are defined. 58 First, the general reference to agreements entered into by the parties and the reference to Annexes 6 to 10 to the application are not sufficient to support a finding of compliance with the requirement that the essential elements of law on which the action is based should be included in the body of the application, particularly as those annexes contain only a very small part of the clauses contained in the grant agreements concerning, furthermore, only 5 of the 38 projects to which the appellant refers. Moreover, the two or three clauses included in those annexes relate exclusively to the applicable law, the determination of the court having jurisdiction to hear disputes between the parties, and the date of entry into force of the agreement containing those clauses. The appellant’s production of all the relevant grant agreements, comprising almost 3 000 pages, as annexes when submitting the reply to the General Court, without providing any explanation as to the relevant parts of those agreements, also fails to meet that requirement, having regard to the case-law mentioned in paragraphs 47 to 50 of the present judgment, as the General Court noted in paragraph 40 of the order under appeal. 59 Nor, second, does the reference to ‘Article II.14.1 of the grant agreements’, in which ‘eligible costs’ are defined, permit the inference that that requirement was met. As the General Court held in paragraph 42 of the order under appeal, even if it was assumed that that definition could be regarded as being uniform for all the relevant grant agreements, Article II.14.1 did not set out any rules as to how the appellant should recover the eligible costs – payment of which was being sought in the action – from the Commission. 60 In that context, the appellant’s argument in its appeal that a precise statement of the rules governing the procedures to be followed in order to pursue such claims against the Commission was irrelevant, because the Commission had already acknowledged the claims covered by the request for payment, cannot be accepted. 61 It is sufficient to note that, contrary to the appellant’s assertions, the Commission did not acknowledge either in the defence or in the rejoinder, or yet in its letter of 25 October 2019 appended as Annex A.19 to the application, as a simple reading of those documents will show, that the costs claimed by the appellant in its action before the General Court corresponded precisely to those which the appellant had submitted to the Commission for payment and which the Commission had accepted in respect of the periods at issue. Consequently, even if, as the appellant maintains, in the context of an action such as that brought by GABO, the fact that a defendant acknowledges that the applicant has actually incurred the eligible costs claimed could make up for any failure to refer in the application to the contractual clauses containing the rules mentioned in paragraph 60 of the present judgment, it must be stated that, in any event, the appellant could not reasonably rely on that argument in the present case. 62 In the second place, while the claim for payment submitted to the General Court related to the eligible costs incurred by the appellant in the context of 38 different projects during the periods at issue, which are two different, specific periods, as the General Court found in paragraph 48 of the order under appeal, the appellant did not provide any explanation as to how it had calculated the various amounts claimed in respect of each of the periods at issue covered by the action and each of the projects concerned. In that regard, neither paragraphs 24 to 27 of the application nor Annexes 14 and 15 thereto, to which those paragraphs refer, contain any information on that point. The same applies with regard to paragraph 21 of the reply submitted to the General Court, in which the appellant stated that, ‘for further clarification’, it was providing a list of certain payment letters in Annex A.24 to that pleading. 63 Examination of that annex reveals that none of the payment letters produced by the appellant covers a period coinciding precisely with the periods at issue. In the case of 12 projects, the payment letters cover periods extending beyond the periods at issue while, in the case of 12 other projects, the payment letters cover periods including only part of the periods at issue. Thus, the way in which the appellant was able to calculate the amounts claimed in its request for payment is not apparent from any of those letters. 64 Since it is common ground that the periods at issue do not correspond to the reporting periods, the details of the appellant’s calculations of the eligible costs claimed for each of the periods at issue and for each project were essential not only so that the Commission would know which method of calculation had been used by the appellant to quantify the costs claimed and, if appropriate, would be able to challenge that method, but also so that the General Court could check that the method used by the appellant to make those calculations was correct. 65 In that context, the Court of Justice cannot accept the appellant’s argument that it was for the Commission to explain the differences between the amount claimed and the amounts accepted by the Commission. Leaving aside the fact that none of the documents on the case file available to the Court shows the exact amount supposedly accepted by the Commission in respect of the eligible costs incurred by the appellant in connection with each of the projects referred to in the action, during each of the periods at issue, the onus is on the appellant, which has claimed payment of specific amounts on that basis, to indicate how it arrived at those amounts. 66 Furthermore, the explanations provided by the appellant in paragraph 25 of the reply submitted to the General Court are not capable of compensating for the lack of information concerning the differences between the amounts accepted by the Commission and those claimed by the appellant. Not only did those explanations relate to just one project – specifically, the SysmedIBD project – but, assuming they could have been deemed to apply to all the projects covered by the action, it must be noted, as is apparent from paragraph 25 of that reply, that the calculation of the eligible costs claimed was made on the basis of expenses recorded in the appellant’s accounts, in line with the declaration of costs in the ‘Form C – Financial Statement’ submitted to the Commission via the project coordinator. Understanding the calculations made would therefore require that form to be available so that the appellant’s explanations could be understood. As it is, the appellant did not provide a copy of that form. Accordingly, even if, as the appellant maintains in its appeal, the Commission was in possession of that form so that the failure to produce it did not prevent the Commission from preparing an adequate defence with regard to the amount of the eligible costs specifically claimed, the General Court would not have essential information at its disposal for the purposes of checking whether the amounts corresponding to the eligible costs claimed by the appellant correspond precisely to the costs accepted by the Commission in relation to the periods at issue in connection with each of the projects covered by the action. 67 The General Court did not, therefore, err in law when it found, in paragraph 49 of the order under appeal, that the essential elements of fact and law on which the appellant’s action was based were not apparent from either the application or the reply. 68 In addition, it should be noted, as stated in paragraph 54 of the present judgment, that it is apparent from the application that the appellant’s alleged right to payment by the Commission of the sum of EUR 1 680 681.82 corresponding to the eligible costs incurred by the appellant during the periods at issue resulted from the fact that, according to the appellant, under German insolvency law, the Commission’s set-off payments in respect of the costs claimed were void. 69 On that last point, it is apparent, in particular, from the application that, following a request made by the appellant in Germany on 26 April 2016, insolvency proceedings were opened in respect of the appellant, initially informally on 28 April 2016, and then formally on 1 July 2016. 70 According to the explanations provided in the application, under Paragraph 133(1) of the Insolvenzordnung (Insolvency Code; ‘InsO’), in the version applicable at the material time, the right of set-off is voidable where the debtor’s claim which is affected by that right arose or became recoverable at a time when the parties involved, in this case the appellant and the Commission, were aware of impending insolvency proceedings. Since, according to the appellant, the Commission had been aware of impending insolvency proceedings since 6 August 2015, all the set-offs made by the Commission in the period between 1 August 2015 and 30 April 2016 are void. Consequently, the Commission should repay all the eligible costs corresponding to that period, a sum of EUR 1 418 644.60, together with default interest. 71 Moreover, pursuant to point 2 of Paragraph 130(1) of the InsO, the right of set-off is in particular voidable where the debtor’s claim which is covered by that right arose or became recoverable no earlier than at the time when the other party became aware of the insolvency petition. Since, according to the appellant, the Commission had been informed on 28 April 2016 of the opening of preliminary insolvency proceedings, any set-off declared by the Commission in the period from 1 May 2016 to 30 June 2016 is deemed ineffective pursuant to point 3 of Paragraph 96(1) of the InsO. Consequently, the Commission should repay all the eligible costs corresponding to that period, a sum of EUR 262 037.22, together with default interest. 72 Without prejudging the question as to whether, on the one hand, an applicant may ask the General Court, pursuant to Article 272 TFEU, to order the Commission to repay, under national insolvency legislation, sums which that institution had allegedly recovered by means of set-off, and whether, on the other hand, national law governing insolvency proceedings involving a co-contractor of the Commission is capable of preventing the Commission from setting off its debts against its claims against that co-contractor or of requiring the Commission to pay that co-contractor sums allegedly recovered by means of set-off, a question that represents the substance of the action, it must be noted in the first place that, in order to satisfy the requirement to set out clearly the elements of law on which the action was based, and thus to comply with the requirements of Article 76(d) of the Rules of Procedure of the General Court, the appellant should have explained clearly the legal effects, in the light of the set-offs made by the Commission, of the application of German insolvency law as invoked by the appellant in support of its request for payment. 73 However, it is clear from reading the application that such legal effects were not clearly set out by the appellant. While the appellant describes those set-offs as ‘void’ in paragraphs 3, 4, 25, 27, 35, 45, 46, 55 and 71 of the application, it describes them as ‘ineffective’ in paragraphs 34, 50, 52, 54, 62 to 66 and 70 of the same application. The explanations given by the appellant in the reply which it submitted to the General Court and in its appeal merely add to the lack of clarity in that respect, since the appellant seems to identify different legal consequences for set-offs made in the period between 1 August 2015 and 30 April 2016, which are said to be ‘merely ineffective’ or ‘ineffective’, and set-offs made in the period from 1 May 2016 to 30 June 2016, which are said to be ‘void’. 74 In the second place, for the purposes of ruling on the merits of the action in accordance with German insolvency law, it was ‘decisive’, as the appellant itself stated in paragraph 4 of the reply lodged with the General Court, to determine whether the Commission’s set-offs during the periods at issue were ‘effective’ or ‘ineffective’ under that legislation. In that regard, it is clear from the information contained in the application, as set out in paragraphs 69 to 72 of the present judgment, that the ‘effectiveness’ or ‘ineffectiveness’ of the set-offs depended exclusively on the date on which they were made, and whether they were made before or after either the date on which the Commission became aware of the impending insolvency proceedings or the date on which those proceedings were opened. 75 Furthermore, it would appear to follow from the application of German insolvency law that those of the appellant’s claims that are covered by the Commission’s set-offs and which are ‘effective’ under German insolvency legislation must be deemed to have been paid by that institution, whereas those covered by the Commission’s set-offs which are not effective under German insolvency legislation cannot be deemed to have been paid by the Commission, and the Commission must actually pay those claims. 76 It follows that, to enable the Commission to prepare an adequate defence as regards determination of the eligible costs claimed, which, under German insolvency legislation, might be deemed to have been paid already, and to enable the General Court to exercise its power of review in that regard, the appellant should have specified the actual number of set-off decisions which, in its view, were ineffective under that legislation, the date of each of those decisions and the eligible costs, from among all the costs claimed, specifically covered by each of those decisions. 77 As it is, no details in that regard were provided either in the application or in the reply. 78 Consequently, the application lacks clarity and precision also as regards elements of fact and law that are essential for the purposes of the action other than those identified by the General Court in paragraphs 40 to 49 of the order under appeal. – The General Court’s findings concerning the lack of consistency of the action 79 It must be noted that the grounds referred to in paragraphs 40 to 48 of the order under appeal and the resulting finding, namely that the essential elements of fact and law on which the appellant’s action was based were not apparent from either the application or the reply, are sufficient, in the light of the case-law referred to in paragraphs 47 to 50 of the present judgment, to enable the General Court to conclude that that action manifestly did not satisfy the requirements of Article 76(d) of the Rules of Procedure of the General Court, and accordingly to justify the operative part of the order under appeal. 80 The words ‘in addition to the fact’ used by the General Court in paragraph 49 of the order under appeal confirm that its finding concerning the lack of consistency vitiating the action and the reasons given for that finding in paragraph 39 thereof are included for the sake of completeness in reaching that conclusion. 81 The appellant’s arguments against those grounds are, therefore, ineffective. 82 Consequently, the second ground of appeal must be rejected as being in part ineffective and in part unfounded. 83 As neither of the appellant’s grounds of appeal is well founded, the appeal must be dismissed in its entirety. Costs 84 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. 85 In accordance with Article 138(1) of those Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 86 Since the appellant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission. On those grounds, the Court (Seventh Chamber) hereby: 1. Dismisses the appeal; 2. Orders GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG to bear its own costs and to pay those incurred by the European Commission. Arastey Sahún Biltgen Passer Delivered in open court in Luxembourg on 16 March 2023 A. Calot Escobar M.L. Arastey Sahún Registrar President of the Chamber * Language of the case: English.