Judgment;Abstract — ECLI:EU:C:2020:575
Date: 2020-07-16
Language of the case: Italian
Court formation: Third Chamber
Subject matter: Research and technological development
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Arbitration clause;Appeal - successful
Origin: Romania

summary of those pleas’. 54 In the second place, the appeal does not comply with the provisions of Article 170 of the Rules of Procedure, which state that ‘an appeal shall seek, in the event that it is declared well founded, the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order.’ In that regard, the Commission observes that the appeal seeks only to have set aside the order under appeal in its entirety, but does not seek the same form of order as that sought at first instance, that is, inter alia, the annulment of the contested decision. Accordingly, IAE does not have an interest in bringing proceedings in the present case. Even if the appeal is allowed, the Court’s decision would have no practical effect in the light of the contested decision’s continued existence in the legal order. Findings of the Court 55 As regards, in the first place, the argument that the appeal is inadmissible on the ground that that appeal does not meet the requirements laid down in Article 168(1)(d) of the Rules of Procedure, it must be borne in mind that it follows from that provision and the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal must state precisely the contested elements of the decision that the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible (see, to that effect, judgment of 4 October 2018, Staelen v Médiateur, C‑45/18 P, not published, EU:C:2018:814, paragraph 14 and the case-law cited). 56 In the present case, the appeal contains, as regards each ground of appeal, a reference to the contested points of the order under appeal and a summary argument identifying the error of law allegedly vitiating that order, thus enabling the Court to exercise its powers of judicial review. Furthermore, it follows implicitly from the response that the Commission had no difficulty in understanding the reasoning adopted by the appellant in the various grounds. 57 As regards, in the second place, the argument that the appeal is inadmissible on the ground that, in its appeal, IAE does not seek the same form of order as that sought at first instance, it must be borne in mind that, pursuant to Article 169 of the Rules of Procedure, an appeal seeks to have set aside the decision of the General Court as set out in the operative part of that decision. That provision thus encapsulates the basic principle applying to appeals, namely that an appeal must be directed against the operative part of the General Court’s decision and may not merely seek the amendment of some of the grounds of that decision (see, to that effect, judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 43 to 45, and of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraph 51). 58 Article 170 of the Rules of Procedure, which is the corollary thereof, concerns, on the other hand, the heads of claim in the appeal relating to the consequences of a possible setting aside of that decision (see, to that effect, judgment of 11 June 2015, EMA v Commission, C‑100/14 P, not published, EU:C:2015:382, paragraph 41). 59 In the present case, it must be noted that, first, IAE formally claims that the Court should set aside the order under appeal. Second, even if the other heads of claim in the appeal do not expressly seek the same form of order as that sought at first instance, that is, to have the contested decision annulled, they cannot be regarded as seeking anything other than, in essence, the same result. 60 In order to avoid excessive formalism, it must therefore be found, contrary to the case-law cited in paragraphs 57 and 58 of this judgment, that IAE complied with the requirements laid down in Articles 169 and 170 of the Rules of Procedure. 61 Moreover, as regards the argument that IAE has no interest in bringing proceedings, it must be borne in mind that, for an applicant to have an interest in bringing proceedings, the appeal must be likely, if successful, to procure an advantage to the party bringing it (judgments of 19 October 1995, Rendo and Others v Commission, C‑19/93 P, EU:C:1995:339, paragraph 13, and of 3 April 2003, Parliament v Samper, C‑277/01 P, EU:C:2003:196, paragraph 28). 62 In that regard, it must be pointed out that, as IAE was unsuccessful at first instance, it undoubtedly has an interest in the Court of Justice allowing its appeal and referring the case back to the General Court for that Court to examine the merits of the pleas that it rejected as manifestly inadmissible. 63 In the light of the above, the plea of inadmissibility must be rejected. Substance 64 IAE relies on four grounds of appeal. The first ground of appeal alleges misinterpretation of the concept of an action based on Article 263 TFEU. By the second ground of appeal, IAE submits that the General Court misinterpreted the argument relied on in the reply and, consequently, infringed general principles of EU law. The third ground of appeal alleges misinterpretation of the third and sixth pleas raised at first instance and failure to state reasons in the order under appeal. The fourth ground of appeal alleges misinterpretation of the claim relating to the unjust enrichment of the European Union and of the claim for liquidated damages. The first ground of appeal – Arguments of the parties 65 By the first ground of appeal, IAE argues that the General Court incorrectly classified the action at first instance by holding, in paragraph 90 of the order under appeal, that that action was wrongly based on Article 263 TFEU and that it should have been brought on the basis of Article 272 TFEU, as the pleas raised alleged failure to perform contractual obligations or infringement of the law applicable to the contracts at issue. 66 According to IAE, the pleas raised in the application instituting proceedings do not allege failure to perform contractual obligations, but infringement of general principles of EU law, enshrined both in the TFEU and in the Financial Regulation, to which express reference is also made in Article II.25 of the General Conditions of the Seventh Framework Programme. IAE states that the clauses of the contracts at issue are only one of the components of the legal reference framework and that they require ‘ongoing interpretation’ and should be supplemented by express references to the general principles of EU law. 67 Furthermore, allowing the General Court to call into question the legal basis of the action at first instance would lead to the infringement of the rights of the defence in that the addressees of decisions that significantly affect the interests of those addressees would not be given the opportunity effectively to make their points of view known. 68 IAE states that general principles of EU law, such as, inter alia, the principle of respect for the rights of the defence, the principle of audi alteram partem, the right to a fair hearing, the principle of the lawfulness of administrative action and the principle of proportionality were relied on both in the application initiating proceedings and in the reply. 69 The Commission contends that the first ground of appeal should be rejected as manifestly unfounded. According to that institution, the General Court rightly took the view, in paragraphs 82 et seq. of the order under appeal, that the action at first instance was based on Article 263 TFEU and that, consequently, in the light of the nature and limits of the role of the courts in the context of the review of legality, the pleas raised by IAE in support of claims seeking a decision on the legality of the contested decision in the light of the contractual provisions were inadmissible. – Findings of the Court 70 As regards the argument relied on by IAE with regard to the classification of the pleas raised in the context of an action for annulment, it must be pointed out that, in paragraph 90 of the order under appeal, without carrying out any assessment of whether or not the basis of the action brought before it was appropriate, the Court recalled the case-law that establishes that the EU judicature, when adjudicating on an action for annulment on the basis of Article 263 TFEU, must assess the legality of the contested measure in the light of the TFEU or of any other rule of law relating to its application, that is to say, of EU law, and that, on the other hand, in the context of an action brought on the basis of Article 272 TFEU, an applicant can allege only that the institution party to the contract failed to perform contractual obligations or infringed the law applicable to the contract concerned. 71 In that regard, it must be borne in mind that an action for annulment for the purposes of Article 263 TFEU must be generally available in the case of all measures adopted by the EU institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in the legal position of that applicant (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 16; of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 47; of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 69; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 62). 72 However, the EU judicature does not have jurisdiction over an action for annulment where the applicant’s legal position falls within contractual relationships whose legal status is governed by the national rules agreed to by the contracting parties (see, to that effect, judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 18; of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 48; of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 78; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 63). 73 Were the EU judicature to hold that it had jurisdiction to adjudicate on the annulment of measures falling within purely contractual relationships in such a case, not only would it risk rendering Article 272 TFEU — which grants the Courts of the European Union jurisdiction pursuant to an arbitration clause — meaningless, but would also risk, where the contract does not contain such a clause, extending its jurisdiction beyond the limits laid down by Article 274 TFEU, which specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the European Union is a party (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 19; of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 49; of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 79; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 64). 74 It follows from that case-law that, where there is a contract between the 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 (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 20, of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 50, and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 65). 75 However, the Commission cannot adopt an enforceable decision in the context of contractual relationships that do not contain an arbitration clause in favour of the EU judicature and therefore fall within the jurisdiction of the courts of a Member State. The adoption of such a decision by the Commission in the absence of an arbitration clause would have the effect of limiting the jurisdiction of those courts, as the EU judicature would acquire jurisdiction to rule on the legality of that decision. The Commission could thus systematically circumvent the allocation of jurisdiction between the EU judicature and the national courts enshrined in the primary law referred to in paragraphs 72 to 74 of this judgment. Accordingly, the power of the Commission to adopt enforceable decisions in the context of contractual relationships must be limited to contracts that contain an arbitration clause that confers jurisdiction on the EU judicature (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 73). 76 According to the case-law of the General Court, cited in paragraph 90 of the order under appeal, where the EU judicature adjudicates on an action for annulment brought on the basis of Article 263 TFEU, it assesses the legality of the contested measure in the light of EU law alone, as the applicant can rely on failure to perform contractual obligations or infringement of the law applicable to the contract concerned only in the context of an action brought on the basis of Article 272 TFEU. 77 It follows from that case-law of the General Court that the EU judicature, when adjudicating on an action for annulment brought against an enforceable decision which constitutes a measure adopted by an institution party to the contract under a power of its own that is distinct from the contractual relationship between the parties, will declare as inadmissible any plea alleging failure to perform contractual obligations or infringement of the provisions of national law applicable to the contract concerned unless it is possible, under certain conditions relating not only to the intention of that judicature, but also to the fact that the applicant does not expressly object to it and to the existence of pleas alleging infringement of the rules governing the contractual relationship, to reclassify the pleas raised (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraphs 81 and 84). 78 In the case at hand, the General Court, after having pointed out, in paragraph 92 of the order under appeal, that each of the pleas raised had to be examined, rejected as inadmissible the first plea and the third to seventh pleas of the action at first instance on the ground, inter alia, that the arguments relied on therein related to the interpretation of the clauses of the contracts at issue. 79 The application of the case-law of the General Court, which makes a distinction as to whether the pleas raised in the context of an action must be regarded by the EU judicature adjudicating on that action as relating to one of the infringements or cases referred to in the second paragraph of Article 263 TFEU or, on the contrary, as alleging failure to perform the clauses of the contract concerned or infringement of the provisions of national law applicable to that contract, would have required that the applicant bring its action on the basis of Article 272 TFEU as well. As such, that case-law would not ensure that all the questions of fact and law that are relevant to the dispute are examined in order to ensure effective judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). 80 For a court to be able to determine a dispute concerning rights and obligations arising under EU law in accordance with Article 47 of the Charter, that court must have jurisdiction to consider all the questions of fact and law that are relevant to the dispute before it (see, to that effect, judgments of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 49, and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 84). Thus, where the EU judicature adjudicates, under Article 263 TFEU, on an action for annulment in the context of a dispute concerning a decision taken on the basis of the performance of a contract, such as in the context of the adoption of an enforceable decision formally establishing a contractual claim, it is for that judicature to hear and determine both the pleas calling into question that decision on the ground that the institution exercised its prerogatives of a public authority and those calling into question the contractual obligations that led to the adoption of that decision (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 88). 81 Furthermore, if the parties decide, in their contract, to confer on the EU judicature, by means of an arbitration clause, jurisdiction over disputes relating to that contract, that judicature will have jurisdiction, independently of the applicable law stipulated in that contract, to examine any infringement of the Charter or of the general principles of EU law. 82 In that regard, it should be pointed out that, where the Commission performs a contract, it remains subject to its obligations under the Charter and the general principles of EU law. Thus, the fact that the law applicable to the contract concerned does not guarantee the same rights as those guaranteed by the Charter and the general principles of EU law does not exempt the Commission from ensuring that the rights guaranteed by the latter are respected in relation to its contracting parties (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 86). 83 It follows that the General Court erred in law in ruling that, in the context of an action brought on the basis of Article 263 TFEU, the EU judicature must assess the legality of the contested measure solely in the light of EU law and that a failure to perform the clauses of the contract concerned or an infringement of the law applicable to that contract may be relied on only in the context of an action brought on the basis of Article 272 TFEU. 84 In the light of the foregoing, the first ground of appeal must be allowed. The second ground of appeal – Arguments of the parties 85 By the second ground of appeal, IAE submits that the General Court erred in taking the view, in paragraph 98 of the order under appeal, that the arguments set out in the reply consisted in the raising of new pleas that sought to reformulate the first plea raised in the application at first instance. In doing so, the General Court misinterpreted the arguments contained in the reply. Those arguments do not constitute a new claim, but merely clarifications of the pleas raised in the application initiating proceedings. 86 The Commission contends that the second ground of appeal should be rejected as manifestly unfounded. – Findings of the Court 87 It should be pointed out that, as the expression ‘moreover’ shows, the reasoning contained in paragraph 98 of the order under appeal is set out for the sake of completeness in relation to that contained in paragraph 97 of that order, in which the General Court held that the first plea had to be regarded as inadmissible, as the arguments that that plea contains relate to the interpretation of contractual clauses and therefore cannot, as such, be relied on in the context of an action for annulment brought on the basis of Article 263 TFEU. 88 The pleas directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to that decision being set aside and are therefore nugatory (see, inter alia, judgment of 11 December 2019, Mytilinaios Anonymos Etairia — Omilos Epicheiriseon (C‑332/18 P, EU:C:2019:1065, paragraph 137 and the case-law cited). 89 Consequently, the second ground of appeal must be rejected as ineffective. The third ground of appeal – Arguments of the parties 90 By the third ground of appeal, IAE alleges that the General Court, first, failed, in paragraphs 113 et seq. and in paragraphs 124 et seq. of the order under appeal, duly to take into account either the applicable audit rules or, consequently, the general principles of EU law and, second, failed to state to the requisite legal standard why the third and sixth pleas raised in support of the action at first instance had to be rejected as unfounded. 91 According to IAE, it follows from Article 317 TFEU that the Commission must also act in accordance with the principles of sound financial management applicable to audits. Furthermore, in accordance with recital 33 and Article 124 of the Financial Regulation, the Commission is obliged to observe certain generally accepted accounting principles, in particular the principle of consistent accounting methods. Those principles do not apply to the EU institutions only in the context of the implementation of the EU budget, but are enforceable against them in the context of any action taken, including in a contractual context. 92 The General Court erred in law in taking the view that the application of audit rules pertains to the interpretation of the contractual clauses and cannot be the subject of an examination by the EU judicature in the context of an action for annulment, whereas, on the contrary, it should have taken into account those rules in order to find that there was an infringement of the general principles of EU law. 93 Moreover, the General Court erred in law in the context of its assessment of the evidence adduced by IAE in that it failed to take into account the facts and documentation submitted by IAE. 94 According to the Commission, the third ground of appeal should be rejected as unfounded. – Findings of the Court 95 As regards, in the first place, an alleged failure to state reasons in the order under appeal, it must be borne in mind that, according to settled case-law, the obligation to state reasons requires the General Court to clearly and unequivocally disclose the reasoning followed by it in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, inter alia, judgments of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 136, and of 26 May 2016, Rose Vision v Commission, C‑224/15 P, EU:C:2016:358, paragraph 24). 96 In the present case, it is apparent from paragraphs 114 to 118 and 124 to 126 of the order under appeal that it cannot be validly argued that the Court failed to state the reasons why the third and sixth pleas raised by IAE in support of its action for annulment had to be rejected. 97 In the context of its examination of the third plea, the General Court pointed out, in paragraph 115 of the order under appeal, that the allegations made by IAE concerning the final audit report were difficult to understand and, in any event, entirely unsubstantiated, holding that they should therefore be rejected as manifestly inadmissible. As for the breach of the principle of respect for the rights of the defence, the General Court referred to the examination carried out in paragraphs 107 to 122 of the order under appeal, an examination which led it to conclude that the arguments relied on by IAE in that regard had to be rejected as unfounded. 98 As regards the sixth plea, the General Court pointed out, in paragraphs 124 and 125 of the order under appeal, that the provisions to which IAE referred constituted rules which are either issued by third bodies or have no binding effects. 99 As regards, in the second place, the argument alleging that the General Court erred in law in the context of its assessment of the facts and evidence, it is sufficient to note that, according to settled case-law, an appeal lies on points of law only and the General Court has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence, save where the facts and evidence are distorted (judgments of 18 July 2006, Rossi v OHIM, C‑214/05 P, EU:C:2006:494, paragraph 26, and of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 38). 100 In the present case, as IAE does not submit that the General Court distorted the facts or evidence, but merely states that it erred in its assessment of the facts and evidence submitted before it, that argument must be rejected as inadmissible. 101 As regards, in the third place, the application of Article 317 TFEU and of the Financial Regulation, it must be borne in mind that the jurisdiction of the Court of Justice is limited to assessing the findings in law on the pleas argued at first instance. To allow a party to raise for the first time before the Court of Justice a plea which it has not raised before the General Court would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, to that effect, judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 59). 102 In the present case, it must be pointed out that IAE did not, admittedly, rely on such an argument before the General Court, but merely alleged infringement of certain applicable audit provisions. 103 However, as it is apparent from paragraph 83 of this judgment that the Commission is obliged to observe the provisions of the TFEU and those of the Financial Regulation, whether acting as a contracting party in contractual relationships with an individual or adopting, in its capacity as administrative authority, decisions that are enforceable, the fact that IAE now refers to the application of Article 317 TFEU and of the provisions of the Financial Regulation should not lead to the conclusion that that argument has a scope different from that relied on before the General Court. That argument must be regarded as an amplification of a claim initially raised in the action before the General Court. 104 Nevertheless, as the General Court rejected that claim on the grounds, inter alia, that the arguments expounded therein were mere allegations that were difficult to understand and, in any event, entirely unsubstantiated and that those arguments did not make any reference to the rules of EU law, and as the argument relied on before the Court of Justice cannot remedy them, that claim must be rejected as inadmissible. 105 In the light of the foregoing, the third ground of appeal must be rejected as being in part inadmissible and in part unfounded. The fourth ground of appeal – Arguments of the parties 106 By the first part of the fourth ground of appeal, IAE submits that the General Court held that its claim seeking to have the European Union held liable for unjust enrichment was unfounded on the sole ground that there was a contractual relationship between the parties, without taking into account the benefit that the Commission obtained from the service provided. 107 By the second part of that ground of appeal, IAE submits that the General Court wrongly took the view that its claim for liquidated damages was not supported, even though such a claim was ‘necessarily’ based on the service that it had already provided and the costs that it had already incurred. 108 The Commission contends that the fourth ground of appeal should be rejected as unfounded. – Findings of the Court 109 As regards the first part of the fourth ground of appeal, it must be borne in mind that, in order for an action for unjust enrichment to be allowed, it is essential that the enrichment be devoid of any valid legal basis. That condition is not satisfied, in particular, where the enrichment derives from contractual obligations (see, to that effect, judgments of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraph 46, and of 28 July 2011, Agrana Zucker, C‑309/10, EU:C:2011:531, paragraph 53). 110 It follows that, after recalling the case-law cited in paragraph 109 of this judgment, the General Court was right to conclude, in paragraph 133 of the order under appeal, that the alleged enrichment of the Commission derived from the MARE, Senior and ECRN contracts that it concluded with IAE, so that that enrichment could not be regarded as ‘unjust’ within the meaning of the case-law. 111 Accordingly, the first part of the fourth ground of appeal must be rejected as unfounded. 112 As regards the second part of the fourth ground of appeal, it must be borne in mind that, according to the Court’s settled case-law, the European Union’s non-contractual liability under the second paragraph of Article 340 TFEU is subject to the satisfaction of a number of conditions, namely the unlawfulness of the conduct alleged against the EU institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (see, inter alia, judgment of 14 October 2014, Giordano v Commission, C‑611/12 P, EU:C:2014:2282, paragraph 35 and the case-law cited). 113 However, in the case at hand, as the application at first instance did not contain any argument to substantiate the claim for liquidated damages, the General Court was right to reject, in paragraph 138 of the order under appeal, that claim as manifestly inadmissible pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1) of its Rules of Procedure. In that regard, the applicant cannot reasonably claim that it could disregard the formal requirements set out in those provisions, as its claim was necessarily based on the service that it had already provided and on the costs that it had already incurred. 114 Consequently, the second part of the fourth ground of appeal must also be rejected as unfounded. 115 In the light of the foregoing, the fourth ground of appeal must be rejected as unfounded. 116 In the light of all the foregoing, the present appeal must be allowed and, accordingly, the order under appeal set aside. Referral of the case back to the General Court 117 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, where the decision of the General Court has been set aside, either give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. 118 In the present case, as the first plea and the third to seventh pleas raised in the context of the action at first instance were rejected in the order under appeal as manifestly inadmissible on the erroneous ground that they related to the interpretation of, or even the alleged failure to perform, the clauses of the contracts at issue and not to the infringement of rules of EU law, the Court takes the view that the state of the proceedings does not permit final judgment to be given in the matter. 119 Consequently, the case must be referred back to the General Court. Costs 120 As the case is being referred back to the General Court, the costs relating to the appeal proceedings must be reserved. On those grounds, the Court (Third Chamber) hereby: 1. Sets aside the order of the General Court of the European Union of 21 April 2016, Inclusion Alliance for Europe v Commission (T‑539/13, not published, EU:T:2016:235); 2. Refers Case T‑539/13 back to the General Court of the European Union; 3. Reserves the costs. [Signatures] * Language of the case: Italian.