62010CJ0200_EN
Parties
Grounds
Operative part
Parties
In Case C‑200/10 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 April 2010,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE,
established in Athens (Greece), represented by N. Korogiannakis, dikigoros,
appellant,
the other party to the proceedings being:
European Commission,
represented by E. Manhaeve, acting as Agent, and by D. Philippe and M. Gouden, avocats,
defendant at first instance,
THE COURT (Eighth Chamber),
composed of K. Schiemann (Rapporteur), President of the Chamber, L. Bay Larsen and E. Jarašiūnas, Judges,
Advocate General: P. Cruz Villalón,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 19 January 2011,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
Grounds
1. By its appeal, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) asks the Court to set aside the judgment of the General Court of the European Union of 9 February 2010 in Case T-340/07 Evropaïki Dynamiki v Commission (‘the judgment under appeal’), by which that Court dismissed its action under Articles 235 EC, 238 EC and 288 EC for an order that the European Commission make good damage suffered as a result of its failure to comply with contractual obligations in the context of the performance of the EDC-53007 EEBO/27873 contract (‘the contract at issue’) relating to the project entitled ‘e-Content Exposure and Business Opportunities’ (‘the eEBO project’).
The contract at issue
2. On 22 December 2000, the Council of the European Union adopted Decision 2001/48/EC adopting a multiannual Community programme to stimulate the development and use of European digital content on the global networks and to promote linguistic diversity in the information society (OJ 2001 L 14, p. 32).
3. Following a call for proposals by the Commission in the context of that programme (‘the eContent programme’), the contract at issue was concluded on 3 July 2002 between Evropaïki Dynamiki and the European Community represented by the Commission.
4. In paragraphs 4 to 12 of the judgment under appeal, that contract is described in particular in the following terms:
‘4 The tasks to be fulfilled by the [appellant] within the context of the eEBO project were, in accordance with Article 1(1) of the contract at issue, defined in Annex I thereto, entitled “Description of Work” (“the technical annex”). The conditions of performance of those tasks were set out in Annex II to the contract at issue, entitled “General Conditions” (“the general conditions”).
…
7 The maximum financial contribution for the eEBO project was fixed at EUR 500 000, in accordance with Article 3 of the contract at issue. The conditions governing reimbursement of the eligible costs were set out in Articles 13 to 16 of the general conditions …
8 Under Article 5 of the contract at issue, “[t]he Court of First Instance of the European Communities and, in the case of an appeal, the Court of Justice of the European Communities shall have sole jurisdiction to hear any disputes between the Community, on the one hand, and the contractors, on the other hand, as regards the validity, the application or any interpretation of this contract”, which was governed by the law of Luxembourg.
9 Under Article 2(2)(h) of the general conditions, the [appellant] was required to “take part in meetings concerning the supervision, monitoring and evaluation of the project which are relevant to [it]”. Article 2(3) provided that the Commission could, in certain circumstances, be assisted by independent experts in the framework of those meetings.
…
11 Article 7(3)(b) of the general conditions provided that “[t]he Commission [could] immediately terminate [the] contract [at issue] ... from the date of receipt of the registered letter with acknowledgement of receipt sent by [it] ... where the participant directly concerned [had] not fully performed his contractual obligations despite a written request from the Commission ... to remedy a failure to comply with such obligations within a period not exceeding one month”.
12 Article 7(6) provided that “contractors [were to] take appropriate action to cancel or reduce their commitments, upon receipt of the letter from the Commission notifying them of the termination of the contract [at issue] ...”.’
Background to the dispute
5. The background to the dispute was described in particular as follows at paragraphs 14 to 45 of the judgment under appeal:
‘14 On 12 August 2002, the Commission paid, as an advance, a sum of EUR 150 000 to the [appellant], in accordance with Article 3(3) of the contract at issue.
…
17 On 21 January 2003, during a meeting with the [appellant’s] representatives in Luxembourg, the Commission [expressed] its concerns relating to certain delays in the organisation of a think tank summit [(“the summit”)]. It requested that the [appellant] provide the Commission with a detailed plan indicating all the dates and participants at that event no later than 5 February 2003. … .
18 On 5 February 2003, the [appellant] presented a detailed plan … .
19 By letter of 6 March 2003, the Commission invited the [appellant] to present to it, during a review meeting, the work completed during the first nine months of the eEBO project. It also decided to have that review conducted by two independent experts.
20 On 20 March 2003, the review meeting took place in Luxembourg.
21 During a meeting on 28 April 2003, the Commission informed the [appellant] of the contents of the evaluation report drafted by the two independent experts. By letter of the same day, it also notified the [appellant] of its decision to initiate the procedure provided for under Article 7 of the general conditions. In that letter, the Commission pointed out that the review of the eEBO project had brought to light the existence of “very serious” problems, in particular by reason of the accumulation of significant delays in the completion of certain major stages of the project, such as the organisation of [the] … summit. The Commission requested that the [appellant] and its partners should “not undertake any new project activities” and should “make their decision whether, in the light of the present situation, a continued commitment of the human and financial resources engaged so far in this project [was] still justified”.
22 In that letter, the [appellant] was also invited to take a position on the various points of criticism and to present an action plan for overcoming the problems which had been identified. Finally, the Commission reserved the right to have the requested action plan reviewed by independent experts and to terminate the contract [at issue] pursuant to the provisions of Article 7 of the general conditions if the proposed action plan was not satisfactory.
23 On 12 May 2003, the [appellant] submitted to the Commission an action plan to resolve the problems identified … .
24 By letter of 16 May 2003, the Commission informed the [appellant] of its decision to terminate the contract pursuant to Article 7(3)(b) of the general conditions. … .
25 By fax of 27 May 2003, the [appellant] expressed its surprise at the termination of the contract at issue and its disagreement with several matters mentioned in the letter of 16 May 2003. It claimed that that decision was unfair and completely devastating for its efforts to organise the summit and project. It also pointed out that it had serious grounds for suspecting that some people officially involved with the project were in a conflict-of-interest situation. Moreover, the [appellant] announced that it would continue to prepare the … summit, as the organisation of that summit had already begun and was therefore not covered by the prohibition on undertaking new project activities connected with the eEBO project which had been notified to it by letter of 28 April 2003. Finally, the [appellant] … provided a new detailed agenda for the … summit in which that summit was scheduled to be held on 13 June 2003 in Athens (Greece).
26 By letters of 2 and 6 June 2003, the Commission pointed out to the [appellant] that, as the contract at issue had been terminated, the Commission would not support the organisation of the summit and “that, naturally, no expenses incurred after the termination of the contract [could] be charged to the contract”.
27 On 13 June 2003, the … summit opened in Athens.
…
30 During a meeting held on 5 February 2004, the [appellant] stated that Mr V., its managing director, had been the victim of blackmail by its two consultants. It also claimed that one of the two independent experts had a conflict of interest.
31 In view of the [appellant’s] criticisms concerning the alleged “unfairness” of the decision to terminate the contract at issue and the alleged conflict of interest on the part of one of the independent experts, the Commission ordered an internal audit.
32 On 22 April 2004, the Commission’s internal audit service made several preliminary observations. It stated that “there [was] no material evidence of a conflict of interest regarding the reviewers of the project”, that “even though it [was] highly probable that [one of the independent experts had known the [appellant’s] two consultants], as all of them [had] worked in the framework of [another contract], there [was] no evidence that [the independent expert] [had been] requested by the two others to give a negative opinion on the project during the review” and that the [appellant] “[had] not yet provided to the Commission any evidence of the ‘blackmail’ from their two consultants, which [had been] referred to during the meeting of 5 February 2004”. The service also stated that, from a technical standpoint, the decision to end the project seemed therefore to be appropriate. Nevertheless, in order to confirm its conclusions, the Commission’s internal audit service recommended the appointment of two new independent experts to review the file once more.
33 By letter of 14 June 2004, the Commission notified the [appellant] of its decision to order a technical verification by two new independent experts …
…
36 By letter of 6 October 2004, the Commission … notified the second evaluation report. As that report confirmed the previous review of the project and the fact that the different documents requested for each of the work packages of the technical annex had not been delivered or had been delivered late, the Commission informed the [appellant] that it would be basing its determination of the eligible costs on that technical verification.
37 By fax of 12 October 2004, the [appellant] expressed disagreement with the conclusions of the second evaluation report on the ground that, first, it had “never agreed to the mandate of this committee” and that, secondly, “experts paid by [the Commission’s] own department and who are invited, in practical terms, just to generate a report to validate an unfair decision taken ... [the previous] year [could] not be considered as ‘independent’ or impartial”. … .
38 By letter of 12 November 2004, the Commission rejected the [appellant’s] claims and informed the [appellant] that it had passed to the next step in determining the eligible costs pursuant to Articles 13 and 16 of the general conditions and that it had fixed the eligible costs of the project at EUR 90 515. As an advance payment of EUR 150 000 had been made to the [appellant] at the beginning of the project, the Commission announced that it would be issuing a recovery order for EUR 59 485.
39 By fax of 9 December 2004, the [appellant] again called into question the validity of the first evaluation report and expressed its doubts as to the impartiality of the new “evaluation committee”. It also requested information concerning the calculation of the eligible costs made by the Commission.
40 By letter of 22 December 2004, the Commission responded to the [appellant’s] criticisms and referred to the letter of 12 November 2004 for details of how the eligible costs had been calculated.
41 By fax of 4 January 2005, the [appellant] reiterated its criticisms, repeated its request for information and proposed a new review by the European Anti-Fraud Office.
…
44 By letter of 24 June 2005, the Commission sent a debit note for EUR 59 485 to the [appellant], with an expiry date of 7 August 2005.
45 By letter of 8 July 2005, the Commission informed the [appellant] that it was offsetting the amount stated on the debit note against amounts still owing to the [appellant].’
The procedure before the General Court and the judgment under appeal
6. By an application of 4 September 2007, Evropaïki Dynamiki brought an action before the General Court for an order that the Commission pay it the amount of EUR 172 588.62 constituting unpaid eligible costs incurred in the framework of the contract at issue, together with the amount of EUR 1 000 to make good the damage allegedly caused to the appellant’s fame and goodwill.
7. In support of that action, the appellant relied in particular on the failure by the Commission to comply with its contractual obligations and on an infringement by the Commission of the principles of sound administration and transparency and on the existence of a conflict of interest.
8. With regard to the first plea in law, alleging an infringement by the Commission of its contractual obligations, the General Court indicated in particular, in paragraphs 59, 61, 64, 71 and 72 of the judgment under appeal, that:
‘59 In the second place, the [appellant] submits that the Commission also breached its contractual obligations concerning the organisation of the … summit.
…
61 The [appellant] … claims that, “even if [the Commission] had rightfully terminated the [eEBO] project, quod non, [it] should have accepted to reimburse [the costs incurred by the … summit] that took place successfully during the Greek Presidency ... in compliance [with] the terms of the contract [at issue]”. According to the [appellant], by writing a letter to the Greek authorities confirming the [appellant’s] request to have that summit added to the programme of the Greek Presidency, the Commission “itself accepted and validated the organisation of the event during the Greek Presidency before the termination of the [eEBO] project”. Therefore the Commission could not arbitrarily terminate that project and should “accept all the responsibilities which arise from the implementation of this event which was requested by the Commission to the Greek Presidency”.
…
64 Finally, the [appellant] submits that the … summit was a genuine success and that, contrary to the Commission’s assertion, the summit lasted three days, from 13 to 15 June 2003. Moreover, according to the [appellant], no new action was undertaken following the letters from the Commission of 28 April and 16 May 2003. The [appellant] claims that it “simply completed all the actions and activities which [had been] triggered [before that first date]”.
…
71 In the fourth place, the [appellant] takes the view that the Commission caused it “significant losses and damages” by “abusively” deciding to pay only part of the eligible costs on the first cost statement, even though “the services and [elements] ... corresponding to the three cost statements were delivered to [the Commission] in compliance [with] the terms of the contract [at issue]”. The [appellant] disputes in particular the Commission’s refusal to reimburse to it the costs connected with the organisation of the … summit. In its view, “although it is true that [that event] took place after the ... termination of the project, [it] was part of the contractual obligations of the parties, it was scheduled far before this decision was taken and it could not have been cancelled a few weeks before it took place”. The [appellant] also claims that “[t]he Commission has never motivated its decision to reject part of the costs of the project” and “has not even commented on [the appellant’s] argument ... that some of the costs paid after the project was terminated could not be avoided any more”.
72 The [appellant] accordingly takes the view that it is entitled to reimbursement of all the “allowable costs” which it incurred under the contract at issue, that is to say, the sum of EUR 174 647.65 relating to the first cost statement, the sum of EUR 31 025.81 relating to the second cost statement, and the sum of EUR 57 430.16 relating to the third cost statement, in other words a total amount of EUR 263 103.62, from which it is, however, necessary to deduct the sum of EUR 90 515 paid by the Commission, with the result that the final amount is EUR 172 588.62.’
9. Ruling on the arguments thus put forward by the appellant, the General Court held in particular, in paragraphs 104, 106 to 108 and 111 and 112 of the judgment under appeal, as follows:
‘104 It should be noted, moreover, that it is not clear that the summit actually lasted three days, as provided for in the contract at issue. The [appellant’s] statements on this point are contradictory. Whilst maintaining in paragraph 15 of the reply that the summit took place in Athens on 13 June 2003, the [appellant] claims, in paragraph 21 of that same document, that the “live demonstrations of projects, networking sessions, group meetings, brain-storming sessions, etc.” in reality “[took] place on 13, 14 and 15 June 2003”. Since the [appellant] bears the burden of proof in this regard, it must be concluded that it has not demonstrated that the summit in fact lasted three days as provided for in the contract at issue.
…
106 It should be noted that Article 7(6) of the general conditions stipulates that “contractors shall take appropriate action to cancel or reduce their commitments, upon receipt of the letter from the Commission notifying them of the termination of the contract [at issue]”.
107 Consequently, under that article, the [appellant] ought to have cancelled the summit or, at least, no longer have undertaken further activities after 16 May 2003. The [appellant’s] argument that it did not undertake any new actions and merely completed all the actions and activities which had been commenced before 28 April 2003 is therefore not relevant.
108 Furthermore, contrary to the [appellant’s] claims in paragraph 51 of the application, it is not true that the Commission accepted and validated the organisation of the event by sending a letter to the Greek Presidency on 3 February 2003. As the Commission points out in paragraph 30 of the rejoinder, it is apparent from that letter sent to the Greek Ministry of Economy and Finance that the Commission merely “confirmed that [the eEBO project] was an EC funded project and that one of the tasks of the project was to organise a ... summit in Greece during the Greek EU presidency”.
…
111 Finally, in light of the foregoing considerations, it must be concluded that the Commission acted correctly in law in taking the view that the [appellant] had not complied in full with its contractual obligations. … The contract at issue was therefore not terminated in breach of the contractual terms binding on the parties to the dispute.
112 The first plea must accordingly be rejected.’
10. Deciding, in the assessment of the second plea, relating to an alleged infringement of the principles of sound administration, transparency and a conflict of interests, on the Commission’s obligations in the context of the first evaluation carried out at its request, the General Court held in particular, in paragraphs 124 to 143 of the judgment under appeal, as follows:
‘124
… [A]s the Community institutions are subject to obligations arising under the general principles raised in relation to individuals exclusively within the framework of the exercise of their administrative responsibilities, and as the relationship between the parties is clearly contractual in nature, the [appellant] can allege only that the Commission breached contractual terms or the law applicable to the contract at issue.
125 In the present case, it is therefore necessary to examine whether the Commission breached its contractual obligations.
…
126 … [I]t should be pointed out that Article 2(2)(h) of the general conditions allows the Commission to organise review meetings. Article 2(3) authorises the Commission to be assisted by independent experts under three conditions. …
…
129 … [T]he second condition laid down by Article 2(3) of the general conditions, namely the communication prior to the review meeting of the names of the independent experts assisting the Commission, was not complied with. Nevertheless, the [appellant] did not make any comments on the choice of those experts in its formal reply to the first evaluation report of 12 May 2003. In those circumstances, the Commission was entitled to form the view that the [appellant] had implicitly accepted the appointment of those two independent experts as reviewers.
…
131 … [T]he mere fact that one of the independent experts responsible for evaluating the eEBO project or certain Commission officials worked with the [appellant’s] consultants on a separate project does not in itself suffice to establish a conflict of interest. …
132 In the present case, the [appellant] has not adduced any facts capable of explaining the extent to which the existence of professional relations between its consultants, certain officials and one of the two first reviewers of the eEBO project might have undermined the independence of those reviewers. On the contrary, it is apparent from the file before the Court, and particularly from paragraphs 2 and 3 of the application and from the unsigned contract between the [appellant] and one of the two independent experts which was produced by the [appellant] in response to the Court’s questions, that the [appellant] recruited the two consultants because of their good relations with the officials involved in the eContent programme. Furthermore, it is common [ground] that the second independent expert responsible for reviewing the eEBO project never had any professional or personal relations with the [appellant’s] consultants or with the Commission officials responsible for that project.
133 Likewise, the [appellant] has also adduced no evidence that the Commission officials “took the side” of its consultants or “put pressure” on the [appellant] to carry out the instructions of those consultants. In paragraph 30 of the reply, the [appellant] refers to “threats” which it allegedly received from its two consultants. However, it has adduced no evidence to substantiate those allegations.
134 For its part, the Commission stated that it had chosen the independent experts responsible for the review of the eEBO project at random and provided a copy of the declarations of confidentiality and absence of conflicts of interest signed by those experts. The Commission therefore took all the measures necessary to avoid a conflict of interest.
135 As has been pointed out above, it is true that the Commission did not reveal the names of the reviewers prior to the first review meeting of 20 March 2003, as it was required to do by Article 2(3) of the general conditions. Nevertheless, as the Commission correctly noted in its pleadings and in the course of the hearing, that first review was followed by an internal audit, itself followed by a second review carried out by two new independent experts. However, the [appellant] itself acknowledged during the hearing that the alleged conflict of interest which it had raised related only to the first review.
136 Consequently, in light of the foregoing considerations, the [appellant’s] arguments relating to the Commission’s obligations in connection with the first review must be rejected.
…
141 The [appellant] submits that the Commission unlawfully interfered in its relations with its two consultants.
142 It must be stated that the [appellant] has not adduced any evidence in support of its allegations. The only document which it has provided is the transcript of a telephone conversation of 10 December 2002 between Mr O. and one of its employees. However, that document does not in any way indicate that the Commission unlawfully interfered in the relations between the [appellant] and its consultants. Furthermore, the [appellant] has adduced no evidence showing that the Commission had requested it “to take actions ([that is to say] execute payments in favour of the consultants which were not in proportion with the quality and the quantity of the services delivered by them), [without regard to] the contractual obligations of the parties”.
143 It follows from the foregoing considerations that the second plea must be rejected as unfounded.’
11. Having thus rejected the two pleas of the action, the General Court concluded, in paragraph 144 of the judgment under appeal, that the action in its entirety should be dismissed.
Forms of order sought by the parties
12. In its appeal, Evropaïki Dynamiki claims that the Court should set aside the judgment under appeal and then rule on the action itself by allowing it and awarding the appellant an amount of EUR 172 588.62, corresponding to all of the costs incurred by it and not yet paid by the Commission, or, in the alternative, and by reason of the Court’s unlimited jurisdiction, amounts of EUR 127 076.48 and EUR 35 503.60, the first corresponding to the costs incurred by it before the termination of the contract at issue and the second to the costs incurred by it after that termination but strictly related to the summit.
13. Evropaïki Dynamiki also seeks an order that the Commission pay the costs incurred both before the General Court and before the Court of Justice.
14. The Commission contends, principally, that the appeal is inadmissible and, in the alternative, unfounded. It also contends that the appellant should be ordered to pay the costs of the appeal and that the decision of the General Court with regard to costs should be upheld.
The appeal
15. In support of its appeal, the appellant raises two pleas in law, the first alleging an error of law in the interpretation and application of Article 7(6) of the general conditions, and the second, which is divided into three parts, various inadequacies of reasoning vitiating the judgment under appeal.
Admissibility of the appeal
16. The Commission contends that the appeal is inadmissible in its entirety on the grounds, firstly, that it merely repeats the arguments already presented before the General Court without providing specific criticism of the judgment under appeal and, furthermore, that its sole purpose is for the Court to rule again on facts that have already been considered by the General Court.
17. In that regard, it must be noted that, having regard to the generality of the terms in which it is formulated and the absence of references to passages of the judgment under appeal and to the pleadings which could substantiate it, such a plea of inadmissibility does not include the minimum information which would enable the Court to assess its merits.
18. Moreover, even a brief examination of the appeal shows that it includes a certain number of specific criticisms in relation to various duly identified passages of the judgment under appeal, a good number of which criticisms are not merely directed at purely factual findings.
19. In those circumstances, the plea of inadmissibility raised by the Commission must be rejected.
Substance
The third part of the second plea
20. By the third part of its second plea, which it is appropriate to consider first, the appellant claims that, by restricting itself to examining the lawfulness of the Commission decision terminating the contract at issue, without expressing a view on whether or not that institution, even independently of that termination, should be ordered to reimburse the costs incurred prior to it, the General Court did not provide an adequate statement of reasons for its decision.
21. While noting that it is true that the General Court did not explicitly respond to the claim for reimbursement of the costs that the appellant claims to have incurred, the Commission contends, first, that the dismissal of that claim follows nevertheless implicitly from the grounds relied on by the General Court so as to hold that the termination of the contract at issue was not unlawful. It contends, secondly, that it was not necessary for the General Court to respond explicitly to that claim since, although the burden of proof in that regard lies with the appellant under Article 16 of the general conditions, it did not adduce any evidence that costs other than those already reimbursed by the Commission could be classified as eligible costs under that contract.
Findings of the Court
22. It should be noted, at the outset, that, as is apparent from the form of order sought in the application lodged by Evropaïki Dynamiki before the General Court, its action sought an order that the Commission pay it, first, ‘the amount of EUR 172 588.62 which constitute unpaid eligible costs incurred by the [appellant] in the framework of [the] contract [at issue]’ and, secondly, ‘the symbolic amount of EUR 1 000 corresponding to the damage suffered [to] its fame and goodwill’.
23. Moreover, it should be noted that it follows both from the wording of that application and from the judgment under appeal, in particular from paragraphs 61, 71 and 72 thereof, that the first of the two claims for compensation thus set out sought an order that the Commission assume all the costs that the appellant considered to be ‘eligible’ within the meaning of that contract, both in the event that the General Court held the termination of the contract to be unlawful and if it held it to be lawful.
24. It should be noted that, in paragraph 17 of its application, the appellant, first of all, recalled that, at the time of the termination of the contract at issue, it disputed the grounds of that termination and claimed that, ‘even in the case of a contract cancellation, all the events which were triggered before the termination of the project had to be completed, since they were covered by [that] contract’.
25. Next, having noted in paragraph 25 of that application that the General Court’s jurisdiction resulted in the present case from Article 238 EC and Article 5(2) of the contract at issue, the latter provision granting jurisdiction to the Community Courts to hear any disputes relating in particular to the application or interpretation of that contract, the appellant claimed in particular, in paragraph 31 of that application, that it was ‘beyond dispute that the first request put forward by the [appellant], namely that the Commission be ordered to pay all allowable costs for the purposes of the contract at issue incurred by the [appellant], concerns the obligations arising from that contract’, not without recalling in that regard that ‘[t]he definition of eligible costs is given in Article 13 [of the general conditions]’.
26. Finally, paragraph 53 of that application, which is in part echoed in paragraph 71 of the judgment under appeal, was worded as follows:
‘When terminating the contract [at issue] the Commission arbitrarily decided to pay a part only of the eligible costs, namely the cost of personnel and the travel expenses specified in the 1st cost statement (period from 1 July 2002 till 31 December 2002) and to exclude the remaining cost of personnel and the overhead expenses specified in the 1st cost statement as well as the eligible costs, namely the cost of personnel, the travel and overhead expenses and the expenses for the organisation of the key “Think Tank” event in Athens during the Greek Presidency, as specified in the 2nd and 3rd cost statements (period from 1 January 2003 till 28 April 2003 and 29 April 2003 till 20 June 2003 accordingly). Although the services and deliverables corresponding to the aforementioned three cost statements were delivered to the Commission in compliance to the terms of the contract with the [appellant], the Commission abusively decided not to pay them in full, causing thus significant losses and damages to the [appellant]. The fact that the aforementioned services were delivered to the Commission is proved by the reports and deliverables sent to the latter by the [appellant]. Especially, as far as the expenses for the Think Tank event are concerned, although it is true that it took place after the abusive termination of the project (the legality of which is in any case contested by the [appellant]), the above event was part of the contractual obligations of the parties, it was scheduled far before this decision was taken and, it could not have been cancelled a few weeks before it took place. Even if the event had been cancelled, the financial impact of its cancellation would have been as important as its organisation, since the venue was already reserved and all the relative services had been ordered. … .’
27. In paragraph 54 of that application, it was also stated that the amounts thus claimed corresponded to the damage suffered by the appellant due to the Commission’s decision to terminate the contract ‘and abstain from any further payment’.
28. In paragraph 23 of its reply, the appellant pointed out once more that, even if it were to be considered that the termination was valid, the fact would remain that the expenses relating to the organisation of the summit concern activities commenced and commitments made before the termination of the contract at issue, since the appellant had already made arrangements with the Greek Presidency, with all the international speakers and participants, with the suppliers of logistics services and with many important media of the European Union, with the result that any attempt to cancel the event in question would have caused serious damage to the appellant, the Greek Presidency and even the Commission, by seriously undermining the objectives of the eContent project.
29. The terms of the application thus showed clearly that the appellant thereby intended to obtain payment of the costs which it considered to be eligible within the meaning of the contract at issue, by criticising, for that purpose, both the allegedly unlawful termination of that contract and, in any event and independently of that termination, the unfounded nature, in its opinion, of the Commission’s partial refusal to assume those costs.
30. However, in the judgment under appeal, the General Court merely concerned itself with establishing, first, and as is apparent from paragraphs 75 to 112 of that judgment, that the Commission had not, in terminating that contract, breached its contractual obligations and, secondly, and as is apparent from paragraphs 125 to 143 of that judgment, that t hat institution had also not breached its contractual obligations as a result of a conflict of interests.
31. Having thus rejected those two pleas of the action, the General Court inferred, in paragraph 144 of the judgment under appeal, that the action was to be dismissed in its entirety.
32. In so doing, the General Court appears to have lost sight of the purpose of the action before it, in so far as the action sought, in essence, on the basis of Article 238 EC in conjunction with Article 5(2) of the contract at issue, an order that the Commission assume, in performance of that contract, a set of costs incurred by the appellant which it considered to be eligible.
33. It follows from the foregoing that the General Court failed to rule on one of the appellant’s heads of claim.
34. In that regard, the Commission’s arguments that, first, the General Court was not obliged to take a view on that head of claim, since the appellant had not discharged the burden of proof concerning the eligibility of the disputed costs and, secondly, the reasoning in the judgment under appeal had, in any event, to be read as meaning that it includes an implied rejection of that head of claim, cannot be upheld.
35. It should be noted, first, that an examination of the file at first instance shows that, before the General Court, the parties submitted various documents and developed detailed arguments, in particular from the point of view of the burden of proof, on the questions of whether or not the disputed costs were eligible within the meaning of Article 14 of the general conditions, whether or not they were justified under Article 16 thereof, or whether they must be assumed by the Commission for one of the other reasons alleged by the appellant, independently of whether the costs were incurred prior to the termination of the contract at issue or after that termination.
36. Various documents submitted by the appellant in support of its action, and in particular Annexes 10 and 11 and 21 to 27 to the application, thus show that the degree of implementation of the contract at issue, first, and the eligibility of the costs pleaded by the appellant and refused by the Commission, secondly, had led to many exchanges between the parties even before proceedings were brought before the General Court.
37. Since it considers all those costs to be ‘eligible’, the appellant referred in particular, in paragraph 53 of its application, already set out in paragraph 26 of this judgment, to the fact that the services and deliverables corresponding to the three cost statements produced were duly delivered to the Commission. In paragraph 12 of its reply before the General Court, it stated, in that regard, that it had full copies of those deliverables and remained available to the Commission and the General Court to submit again such copies and repeat the demonstration already made to the reviewers. In paragraph 67 of its reply, the appellant also claimed that it had carefully complied with the procedures under the contract at issue for submitting cost statements, whereas the Commission, for its part, at no time gave reasons for its strictly unilateral decision to reject a part of the costs invoked.
38. With regard, more particularly, to the costs of the summit, it follows from paragraphs 52 and 53 of its application before the General Court that the appellant insisted in particular on ‘the fact that the cancellation of the event would have not resulted [in] the reduction of the financial burden, since contracts had already been signed with service providers and too many important and institutional speakers and attendees were invited for an event which was part of the eEBO contract, which was organised on behalf of the … Commission to promote its own interests’ and on the fact that ‘the financial impact of [the] cancellation [of that event] would have been as important as its organisation, since the venue was already reserved and all the relative services had been ordered’.
39. For its part, after referring, in paragraphs 143 and 144 of its defence, to Articles 13 and 16 of the general conditions, the Commission contended, in paragraphs 145 and 146 of that defence, that the costs claimed by the appellant could not be assumed by the Commission, since, in particular, they had not been duly justified by the appellant, or their eligibility had not been established by it or, since they were incurred after the end of the contract, they could not be eligible.
40. With regard, more specifically, to the summit, it is apparent from paragraph 147 of its defence that, while thus contending that it could not be obliged to reimburse the costs relating to that event, the Commission none the less conceded that it could be otherwise with regard to costs irremediably incurred before the beginning of the ‘Red Flag Procedure’ provided for in Article 7 of the general conditions, on condition, in that case, that the appellant prove that arrangements had already been made before that date and that their cancellation would have caused costs in the same amount as for the organisation of the event concerned.
41. In those circumstances and for the purposes of ruling on the claim for compensation which was before the General Court, it was for that court, in the light of the arguments thus exchanged and the evidence adduced by the parties, by taking account both of the rules relating to the burden of proof and of the position taken by those parties, in particular for the purposes of gaining mutual clarification, to examine and expressly determine the questions of whether or not, independently of the termination, the costs both prior to and after that termination, as listed in the three detailed statements that the appellant produced in support of its action, are eligible within the meaning, in particular, of Articles 1(11) and (28) and 13 of the general conditions, whether or not they are justified within the meaning of Article 16 thereof, and, also, whether they must be assumed by the Commission for one of the other reasons alleged by the appellant.
42. It must, furthermore, be noted that it is irrelevant in that regard that the General Court, with a view solely to determining the question of whether the Commission had breached its contractual obligations by terminating the contract at issue, held that a range of different factors, such as those in paragraphs 83 to 109 of the judgment under appeal, led to a negative answer to that question. Even if some of those findings of the General Court, in certain circumstances, could have been such as to lead it to hold that part of the costs alleged by the appellant should not be charged to the Commission, such a fact cannot remedy the complete lack of examination and decision on the part of the General Court in relation to the question thus submitted to it by the appellant.
43. It follows from all of the foregoing that the third part of the second plea in the appeal must be upheld and that the judgment under appeal must be set aside on that point.
The first plea
Arguments of the parties
44. By its first plea the appellant submits that, by restricting itself, in paragraph 107 of the judgment under appeal, to endorsing the Commission’s argument that the appellant should have cancelled the summit, the General Court erred in its interpretation and application of Article 7(6) of the general conditions.
45. In doing so, it is argued, the General Court failed to examine the appellant’s argument that the mere completion of actions already planned and commenced before 28 April 2003 did not constitute an undertaking of new actions after that date, which could have been contrary to the said provision, erroneously considering the argument to be irrelevant. According to the appellant, a reduction of commitments under Article 7(6) does not necessarily mean cancellation of an action already planned.
46. The Commission is of the opinion that the General Court did not state that the appellant should have cancelled the summit but rather that, if it did not cancel it, it should at least not have undertaken further activities, so as to mitigate costs wherever possible, and cancelled such parts of the event for which no final commitments had yet been made, or which could be cancelled at a lesser cost than going through with the event. It is argued that the appellant failed to demonstrate that it had changed or attempted to change its plans relating to the organisation of the summit. The General Court’s assessment is therefore consistent with the wording of Article 7(6) of the general conditions and is sufficient to meet the appellant’s arguments.
Findings of the Court
47. It should be noted that Article 7(6) of the general conditions stipulates that ‘contractors shall take appropriate action to cancel or reduce their commitments, upon receipt of the letter from the Commission notifying them of the termination of the contract … ’.
48. In paragraph 107 of the judgment under appeal, the General Court held that, under that article, the appellant ought to have cancelled the summit or, at least, no longer undertaken further activities after 16 May 2003. It added that the appellant’s argument that it had not undertaken any new actions but merely completed all the actions and activities which had been commenced before 28 April 2003 was therefore not relevant.
49. For the purposes of examining the appellant’s criticisms with regard to those findings of the General Court, it should, first of all, be recalled that, as is apparent from paragraphs 17, 52 and 53 of its application before the General Court, as set out in paragraphs 24, 26 and 38 of the present judgment, by its action, the appellant sought to recover all of the costs incurred as a result of the organisation of the summit, on the ground, in particular, that a cancellation of that event was no longer possible at the time when the contract at issue was terminated.
50. In that regard, it must, first of all, be noted that the statement in paragraph 107 of the judgment under appeal that, in accordance with Article 7(6) of the general conditions, the appellant ‘ought to have cancelled the summit or, at least, no longer have undertaken further activities after 16 May 2003’ does not respond completely to the argument thus put forward by the appellant.
51. Next, such a statement, that the application of that provision of the general conditions should thus have led either to a cancellation of the event concerned or to its being continued, but without new activities being undertaken, seems to reflect a lack of examination of the circumstances of the case for the purposes of determining which of those two solutions was dictated by those circumstances.
52. Moreover, with regard, as in the present case, to the organisation of a conference financed by the Commission with the aim of promoting a European Union programme to be held in association with the Member State assuming the Presidency of the Council, the effective success of which conference seemed to imply the choice of adequate venues and the use of various service providers, as well as the presence of speakers and representatives of the sector concerned and of various European Union institutions, and also media coverage, it is not clear what were the ‘further’ activities which, according to the General Court, should not have been undertaken by the appellant in the event of a continuation of the event concerned. Questioned on that point at the hearing, the Commission was also not able to indicate to the Court how the planned event could, in particular, have been cancelled in part.
53. Finally, it is also legitimate to inquire how the appellant’s claim that the summit could no longer have been cancelled having regard to the state of progress that the project had already reached on 28 April 2003, the date on which the ‘Red Flag Procedure’ was begun, was to be regarded as irrelevant, on the sole ground that, in order to assess whether that event should have been continued or cancelled, it was necessary, as is apparent from Article 7(6) of the general conditions, to place oneself not at 28 April 2003, but at the date of the termination of the contract, that is to say 16 May 2003. It appears, a priori, that the state of progress of the project could only have been yet more advanced at the second of those two dates, in particular if account is taken of the fact, noted in paragraph 22 of the judgment under appeal, that, in its letter of 28 April 2003 initiating the ‘Red Flag Procedure’, the Commission insisted that the appellant present, within two weeks, an action plan for overcoming the problems identified and stated, moreover, that it reserved, if necessary, the right to have that plan subsequently reviewed by independent experts.
54. In the light of all the foregoing, it must be held that the General Court’s findings in paragraph 107 of the judgment under appeal, first, are not the result of a coherent and reasoned application of Article 7(6) of the general conditions and, secondly, do not respond adequately and sufficiently to the argument invoked by the appellant in support of its claim that the Commission assume the eligible costs relating to the organisation of the summit.
55. In that regard, it should however be recalled that it follows from paragraphs 22 to 43 of the present judgment, concerning the examination of the third part of the second plea on appeal, that, in the judgment under appeal, the General Court failed to rule on that claim of the appellant and that that judgment must already be set aside on that point. It follows that, although the criticisms expressed by the appellant in relation to paragraph 107 of the judgment under appeal are justified, they cannot in this case lead to that judgment being set aside to a greater extent than has already resulted from taking into consideration the third part of the second plea.
56. Although the findings in paragraph 107 form steps in a reasoning process in which the General Court concerned itself exclusively with establishing that the termination by the Commission had not breached the provisions of the contract at issue, those findings do not seem relevant from that point of view, since they relate, in fact, to Article 7(6) of the general conditions and, therefore, to the approach that the appellant was to adopt following that termination.
57. Since those findings are thus not relevant for the purposes of reaching the conclusions drawn by the General Court in paragraphs 111 and 112 of the judgment under appeal, it follows that the fact that they are mistaken also cannot lead to those conclusions being invalidated.
58. It follows from all of the foregoing that, although well founded, the first plea on appeal cannot lead to the judgment under appeal being set aside to a greater extent than has already resulted from taking into consideration the third part of the second plea.
The first part of the second plea
Arguments of the parties
59. The appellant claims that the General Court failed to explain clearly why, when the Commission had validated the organisation of the summit that had been financed by it, in a letter to the Greek Presidency of 3 February 2003, in order to have it inserted in its official agenda, the Commission was free arbitrarily to abandon that event without informing the Greek Presidency. The General Court did not take into consideration the fact that the appellant was not in a position itself to cancel the event and to request that it be withdrawn from that official agenda.
60. Moreover, the General Court, it is argued, also failed to address the question of whether a termination of the contract at issue as a whole, a few weeks before the event took place, was in compliance with the principle of Luxembourg law concerning performance of contracts in good faith, when the event had been organised over a long period, contracts had been signed with service providers, and many speakers and important participants, particularly from the institutions, had been invited.
61. The appellant points out, more specifically, in relation to the doubts expressed by the General Court in paragraph 104 of the judgment under appeal, with regard to the duration of the event, that it is not disputed that it did indeed last for three days.
62. The Commission contends, in the first place, that, following a careful legal assessment and sufficient reasoning, the General Court held that the appellant was responsible both for organising the event concerned and for initiating the contacts with the Greek Presidency in relation to it. In paragraph 108 of the judgment under appeal, the General Court, furthermore, expressly held that the letter from the Commission of 3 February 2003 had the purpose not of validating the organisation of that event, but merely of confirming that it was funded by the Commission, which also cannot lead to the latter becoming responsible for the cancellation of that event.
63. In the second place, the Commission considers that the termination of the contract at issue did not disregard the principle of Luxembourg law concerning performance of contracts in good faith, as this termination, it is argued, complied with the applicable statutory and contractual provisions, as the General Court accepted in paragraphs 79 to 111 of the judgment under appeal by means of an analysis that was sufficient to provide grounds for the judgment in this regard.
Findings of the Court
64. As is apparent from the appellant’s arguments, it criticises the grounds of the judgment under appeal from two distinct angles.
65. With regard, first, to the argument alleging an inadequate statement of reasons in the judgment under appeal concerning the consequences likely to flow from the lack of cancellation or request to remove the event concerned from the official agenda sent by the Commission to the Greek Presidency, it suffices to note that, in paragraph 108 of the judgment under appeal, the General Court expressly rejected the appellant’s argument that the Commission had, by its letter of 3 February 2003, accepted and validated the organisation of that event, and it based that rejection on an examination of the actual wording of that letter.
66. It follows that that first argument must be rejected as unfounded.
67. With regard, secondly, to the argument alleging a lack of adequate reasoning in the judgment under appeal in so far as, by that judgment, the General Court had not explained how a termination of the contract at issue at the planning stage of the summit when that termination took place complies with the principle of Luxembourg law that agreements are to be performed in good faith, it suffices to note that it is not apparent either from the application or from the reply lodged by the appellant before the General Court that the appellant alleged before that court that that termination took place in breach of that principle.
68. Since such a legal argument was not raised before the General Court, it cannot, in the present case, be complained that that court failed to fulfil its obligation to state reasons in not ruling on that argument. Therefore, the second argument, on which the first part of the second plea on appeal is based, must also be rejected as unfounded.
69. As regards the separate substantive question whether, in the light in particular of the date on which the contract at issue was terminated and of all the other relevant circumstances preceding that termination, the costs relating to the organisation of the summit must in fact be assumed by the Commission, it should be noted that, since the General Court failed to examine that head of claim and to rule on it, and as a consequence of taking into consideration the third part of the second plea on appeal and setting aside that point of the judgment under appeal, that question remains to be determined in its entirety.
70. It is also in the context of a future examination that the question of the actual duration of the summit, raised inopportunely by the appellant in support of this part of its second plea, must, assuming it to be relevant, be assessed.
71. It follows from the above that the first part of the second plea on appeal must be rejected as unfounded.
The second part of the second plea
Arguments of the parties
72. The appellant claims that the General Court did not give sufficient grounds for the rejection of its arguments concerning the existence of a conflict of interest on the part of the independent reviewers and the breach, in this regard, by the Commission of the terms of the contract at issue and of its obligation to ensure that the appellant is treated fairly.
73. Since it is allegedly not disputed that one of the appellant’s consultants was a former colleague both of the official in charge of the project and of the independent reviewer appointed and that there are, therefore, sufficient concrete reasons to suspect a conflict of interests, the General Court failed to examine whether those matters were directly linked to the fact that the Commission, contrary to its normal practice, had, first, appointed that reviewer whilst failing moreover, in breach of the contract at issue, to communicate his identity to the appellant and had, secondly, failed to order a new independent evaluation giving the appellant a right to be heard. By ignoring those arguments, the General Court failed to give adequate grounds for its conclusion that the termination of the contract was lawful.
74. In that regard, the General Court, it is argued, wrongly held in particular, in paragraph 135 of the judgment under appeal, that the fact that the reviewers who carried out the second evaluation were not in a situation of conflict of interest was sufficient to cure the irregularities that had vitiated the first evaluation.
75. Furthermore, with regard to its argument that the Commission had put pressure on it to resolve the problems encountered with the two consultants and to pay them, the appellant claims that by merely finding, at paragraph 142 of the judgment under appeal, that it had not adduced any evidence in this regard, the General Court failed to provide sufficient grounds for its decision. According to the appellant, the transcript of the telephone conversation that took place on 10 December 2002 clearly indicates that the Commission had requested the appellant to pay fees to the consultants that were not in proportion with the services supplied.
76. According to the Commission, the General Court was correct, on the basis of sufficient reasoning, to hold, as is apparent in particular from paragraphs 129, 133 and 134 of the judgment under appeal, that the possible breach of one of its contractual obligations by the Commission, in this case the failure to communicate the identity of the reviewers, was not such as to affect the validity of the termination of the contract at issue.
Findings of the Court
77. For the purposes of determining the question of whether the General Court provided sufficient reasoning for the judgment under appeal to justify the rejection of the appellant’s arguments alleging the existence of a conflict of interests, it is necessary, first of all, to recall the content of those arguments.
78. In that regard, the General Court refers, in paragraphs 114 and 115 of the judgment under appeal, to the fact that the appellant claimed in particular, first, that it had informed the Commission of the relations between the various interveners and that those relations were the cause of the dysfunctions within the project, so that the Commission ought, at the very least, to have organised an independent evaluation by granting it the right to be heard and conducting an inquiry into its allegations. Secondly, the appellant claimed that the Commission had interfered in its relations with its two consultants, the project officer having put pressure on it to implement the instructions of those consultants which nevertheless infringed the terms of the contract at issue.
79. With regard, first, to that latter claim of the appellant, the General Court held, in paragraph 142 of the judgment under appeal, that the appellant had not established the existence of the alleged interference, since the only material evidence adduced by it was, according to the General Court, of no probative value in that regard.
80. The third argument invoked by the appellant in its appeal seeks to call in question that assessment by the General Court.
81. In that regard, it should however be recalled that it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts.
82. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, in particular, Case C‑551/03 P General Motors
v Commission
[2006] ECR I‑3173, paragraphs 51 and 52 and case-law cited).
83. In the present case, as troubling as the series of circumstances which finally led to the termination of the contract at issue may appear in certain respects, it cannot be considered, and the appellant has moreover not alleged, that the General Court, by its assessment of the facts or evidence which were submitted to it, distorted those facts and evidence.
84. It follows that the appellant’s argument must in that regard be rejected as inadmissible.
85. With regard, secondly, to the appellant’s arguments invoked before the General Court, criticising the Commission for failing to take the measures required once it was informed of the conflict of interests resulting from the relations between its two consultants and certain Commission officials and reviewers, namely, in essence, the organisation of an independent evaluation guaranteeing the appellant’s right to be heard, it should, first of all, be noted that the General Court held, in paragraphs 124 and 125 of the judgment under appeal, that, for the purposes of giving a ruling on that submission, it was necessary solely to determine whether in the present case the Commission could be criticised for having infringed its contractual obligations. That assessment by the General Court is not called in question by the appeal.
86. Next, examining the Commission’s obligations where it makes use of the possibility, provided by Article 2(2)(h) of the general conditions, to organise an evaluation meeting, the General Court considered that the three conditions set in that regard by Article 2(3) of those general conditions were fulfilled in the present case.
87. With regard, in particular, to the second of those conditions, the General Court held, in paragraph 129 of the judgment under appeal, that, although the requirement that the names of the independent experts be communicated by the Commission before the evaluation meeting was admittedly not complied with, the appellant nevertheless did not make any comments on the choice of those experts in its formal reply to the first evaluation report of 12 May 2003, so that the Commission was justified in considering that the appellant had implicitly accepted the appointment of those two independent experts as reviewers.
88. Those findings by the General Court have also not been called in question by the appeal.
89. Considering, lastly, the requirement relating to the independence of the reviewers thus appointed, the General Court first of all stated, in paragraph 131 of the judgment under appeal, that the mere fact that one of the experts responsible for evaluating the eEBO project or certain Commission officials had worked with the appellant’s consultants on a separate project did not in itself suffice to establish a conflict of interest.
90. In paragraphs 132 and 133 of the judgment under appeal, the General Court continued by holding, by way of factual assessments which, as has just been recalled, cannot be reviewed by the Court of Justice in the context of an appeal, that, in the present case, the appellant had not adduced any evidence capable of explaining the extent to which the existence of professional relations between its consultants, certain officials and one of the two first reviewers of the eEBO project might have undermined the independence of those reviewers. It also noted that the second independent expert responsible for reviewing that project had never had any professional or personal relations with the appellant’s consultants or with the Commission officials responsible for that project. The General Court also held that the appellant had adduced no evidence either that the Commission officials took the side of its consultants or put pressure on it to carry out the instructions of those consultants, or of threats allegedly received from its two consultants.
91. In paragraph 134 of the judgment under appeal, the General Court considered, moreover, on the basis of explanations provided by the Commission, according to which it had chosen the independent experts responsible for reviewing the eEBO project at random and had provided a copy of the declarations of confidentiality and absence of conflicts of interest signed by those experts, that the Commission had thus taken all the measures necessary to avoid a conflict of interests.
92. Having rejected in paragraph 136 of the judgment under appeal the appellant’s arguments relating to the Commission’s obligations in connection with the first review, the General Court then set out in paragraphs 137 to 140 of that judgment the reasons why it considered that the Commission had also not infringed its contractual obligations in the context, first, of the internal audit and, secondly, of the second review.
93. In the light of the series of different assessments made by the General Court, the appellant is not justified in claiming that that court failed to fulfil its obligation to state reasons by giving an insufficient indication of why it considered it necessary to reject the appellant’s arguments alleging a breach of the contract at issue by the Commission as a result of a conflict of interests.
94. Thirdly, it should be noted that, by the considerations set out in paragraphs 124 to 134 of the judgment under appeal, which have just been reviewed, the General Court gave sufficient reasons for its conclusion in paragraph 136 of that judgment, according to which it was necessary to reject the appellant’s arguments relating to the Commission’s obligations in connection with the first review.
95. Since the assessment in paragraph 135 of the judgment under appeal, in particular in the light of the finding already made in paragraph 129 of the judgment under appeal and the findings of fact made in paragraphs 132 and 133 thereof, is only for the sake of completeness from the point of view of that conclusion, the argument raised by the appellant contesting paragraph 135 cannot therefore, even assuming it to be well-founded, lead to the conclusion that the General Court provided insufficient reasons for its judgment. In those circumstances, it suffices to hold that that argument must be rejected as ineffective.
96. It follows from all the foregoing that the second part of the second plea on appeal must be rejected as being, in part, unfounded and, in part, inadmissible.
Setting aside the judgment under appeal
97. As a result of taking into consideration the third part of the second plea on appeal, the judgment under appeal must be set aside in so far as the General Court failed to rule on Evropaïki Dynamiki’s claim that the Commission should be ordered to pay it the amount of EUR 172 588.62, corresponding to the costs not already reimbursed by the Commission which were incurred by the appellant in connection with the contract at issue.
Referral of the case back to the General Court
98. In the form of order sought in its appeal, Evropaïki Dynamiki requests the Court, once the judgment under appeal is set aside, to rule itself on the action by allowing it and awarding the appellant an amount of EUR 172 588.62, corresponding to all of the costs incurred by it and not yet assumed by the Commission, or, in the alternative, with the Court making use in that regard of its unlimited jurisdiction, amounts of EUR 127 076.48 and EUR 35 503.60, the first corresponding to the costs incurred by Evropaïki Dynamiki before the termination of the contract at issue and the second to the costs incurred after that termination but closely connected with the summit.
99. In that regard, it should however be recalled, first, that, as is apparent from Article 256 TFEU, decisions given by the General Court, in particular under Article 272 TFEU, may be subject to a right of appeal to the Court of Justice on points of law only, under the conditions and within the limits laid down by the Statute of the Court of Justice.
100. The first paragraph of Article 61 of that Statute provides that, where the Court quashes the decision of the General Court, it may itself 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.
101. In the present case, the Court considers that it is not in a position to give judgment on the substance of Evropaïki Dynamiki’s claim that the Commission should be ordered to pay it the amount of EUR 172 588.62. The examination of that aspect of the action involves carrying out factual assessments on the basis of evidence which was not fully assessed by the General Court and was not discussed before this Court.
102. Consequently, it is necessary to refer the case back to the General Court for judgment on Evropaïki Dynamiki’s claim that, notwithstanding the termination of the contract at issue, the Commission should be ordered to pay it the amount of EUR 172 588.62, corresponding to the costs not yet reimbursed by the Commission which were incurred by Evropaïki Dynamiki in connection with that contract.
Costs
103. Since the case is being referred back to the General Court, the costs must be reserved.
Operative part
On those grounds, the Court (Eighth Chamber) hereby:
1. Sets aside the judgment of the General Court of the European Union of 9 February 2010 in Case T‑340/07 Evropaïki Dynamiki
v Commission
in so far as, by that judgment, the General Court failed to rule on the claim of Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE that, notwithstanding the termination of the EDC-53007 EEBO/27873 contract, the Commission should be ordered to pay it the amount of EUR 172 588.62, corresponding to the costs not already reimbursed by the Commission which were incurred by the appellant in connection with that contract;
2. Refers the case back to the General Court of the European Union for judgment on that claim of Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE;
3. Reserves the costs.