JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
29 June 2022 (*)
(Culture – Creative Europe Programme (2014 to 2020) – MEDIA sub-programme – Call for Proposals EACEA/05/2018 – Decision of the EACEA rejecting the applicant’s application on the ground of failure to comply with the eligibility conditions – Commission decision dismissing the administrative appeal relating to the EACEA’s decision – Concept of ‘European company’ – Grant open only to applicants owned, directly or by majority participation, by nationals of EU Member States or by nationals of other European countries participating in the sub-programme – Errors of assessment – Failure to examine the documents annexed to the proposal – Proportionality)
In Case T‑641/20,
Leonine Distribution GmbH, established in Munich (Germany), represented by J. Kreile, lawyer,
applicant,
v
European Commission, represented by W. Farrell and A. Katsimerou, acting as Agents,
defendant,
supported by
European Education and Culture Executive Agency (EACEA), represented by H. Monet, N. Sbrilli and V. Kasparian, acting as Agents,
intervener,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, J. Schwarcz and C. Iliopoulos (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action based on Article 263 TFEU, the applicant, Leonine Distribution GmbH, seeks annulment of Commission Implementing Decision C(2020) 5515 final of 10 August 2020 dismissing the administrative appeal brought under Article 22(1) of Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1) against the decision of the European Education and Culture Executive Agency (EACEA) of 12 May 2020 rejecting its application for a grant in the context of the call for proposals ‘Support for the distribution of non-national films – Distribution Automatic Scheme’ (EACEA/05/2018) (‘the contested decision’).
Background to the dispute
2        The applicant is a company incorporated under German law which is active in the distribution of cinematographic works.
3        Under Commission Implementing Decision 2013/776/EU of 18 December 2013 establishing the [EACEA] and repealing Decision 2009/336/EC (OJ 2013 L 343, p. 46), the EACEA is responsible for managing the EU programmes in the fields of education, audiovisual and culture.
4        Acting under the control of the European Commission, the EACEA acts in accordance with Regulation No 58/2003.
5        In the context of the implementation of European programmes, the Commission entrusted the EACEA with certain management tasks for the Creative Europe Programme, established by Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe Programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC (OJ 2013 L 347, p. 221).
6        The Creative Europe Programme is a support programme for the cultural and creative sector within the European Union. It includes, in particular, the MEDIA sub-programme, which was entrusted to the EACEA on behalf of the Commission.
7        In the context of the MEDIA sub-programme, the EACEA published, on 12 June 2018, the Call for Proposals EACEA/05/2018: ‘Support for the distribution of non-national films – Distribution Automatic Scheme’ (‘the call for proposals at issue’).
8        On 5 November 2018, the applicant submitted its application in connection with the call for proposals at issue.
9        The call for proposals at issue was accompanied by guidelines adopted on the basis of Regulation No 1295/2013 (‘the Guidelines’). Section 6.1 of the Guidelines sets out the eligibility criteria for applicants for funding. The latter must, in particular, be ‘European companies’ within the meaning of those provisions.
10      On 20 May 2019, the EACEA informed the applicant that it had been selected for the award of a grant in the context of the call for proposals at issue.
11      On 25 June 2019, before the signing of the grant agreement, the applicant informed the EACEA of a change in the composition and structure of its shareholding. On the following day, it provided details as to the transfer of ownership which had taken place.
12      On 16 July 2019, the EACEA requested additional information from the applicant concerning the nationality, names and percentage of shares held by its various shareholders.
13      By decision of 14 August 2019, the EACEA, after receiving the applicant’s response to the request for additional information, refused to award it the grant and stated that the application was not eligible by reason of the transfer of ownership of the applicant (‘the decision of 14 August 2019’).
14      The EACEA found that an examination of the applicant’s shareholding structure showed that the applicant was ultimately owned indirectly by a majority shareholder, KKR European Fund IV L.P., established in the Cayman Islands, which in turn was owned directly by KKR & Co. Inc., an entity established in the United States.
15      The EACEA concluded from this that the majority of the shares in the applicant were owned by an entity which was not a national of an EU Member State or of another European country participating in the MEDIA sub-programme. In those circumstances, it found that the applicant could not be regarded as a ‘European company’ within the meaning of Section 6.1 of the Guidelines. Consequently, it found that the applicant did not meet the eligibility criteria laid down by that provision and rejected the application for funding.
16      On 16 September 2019, the applicant requested the EACEA to review the decision of 14 August 2019.
17      On 6 February 2020, the EACEA withdrew the decision of 14 August 2019 and invited the applicant to submit its observations.
18      By decision of 12 May 2020, after receiving the applicant’s observations, the EACEA found, in the light of the evidence provided, that the majority of the shares in the applicant were ultimately owned by KKR European Fund IV, which could not be regarded as a ‘European company’ within the meaning of Section 6.1 of the Guidelines. It stressed that the applicant had not provided sufficient information to assess the structure of its shareholding, nor specified, in particular, the nationality of all of its shareholders and the percentage of shares held by each of them. The EACEA concluded that the applicant did not meet the eligibility criteria laid down in that provision and confirmed its initial refusal to award it the grant applied for.
19      On 12 June 2020, the applicant lodged an administrative appeal with the Commission seeking a review of the legality of the EACEA’s decision of 12 May 2020 pursuant to Article 22(1) of Regulation No 58/2003.
20      By the contested decision, and after receiving the applicant’s observations, the Commission dismissed the administrative appeal referred to in paragraph 19 above and confirmed the legality of the EACEA’s decision of 12 May 2020.
Forms of order sought
21      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
22      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
23      The EACEA contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred by the intervener.
Law
24      The applicant puts forward, in essence, four pleas in law in support of its action.
25      The first plea alleges that the Commission erred in law in defining the concept of ‘European company’ within the meaning of Section 6.1 of the Guidelines. The second plea alleges that the Commission made an error of assessment in applying that section to the present case. The third plea alleges a failure to carry out an examination. The fourth and final plea alleges infringement by the Commission of the principle of proportionality.
26      The Commission, supported by the EACEA, contends that all the applicant’s pleas must be rejected.
The first plea in law, alleging an error of law in the interpretation of the concept of ‘European company’ within the meaning of Section 6.1 of the Guidelines
27      The applicant submits that the Commission misinterpreted the concept of ‘European company’ within the meaning of Section 6.1 of the Guidelines, relating to the eligibility criteria of applicants for funding.
28      The applicant claims, in the first place, and in essence, that only the direct participation, whether it be through the ownership of all shares or of the majority of shares, by the shareholders in the applicant company is relevant for the purpose of assessing its eligibility for funding provided for in the call for proposals at issue. In particular, the concept of a majority participation provided for in Section 6.1 of the Guidelines cannot be interpreted as referring to the concept of indirect participation in the applicant company in order to assess its eligibility for the purposes of those provisions.
29      In the second place, the applicant observes that Section 6.1 of the Guidelines does not lay down any rule as to how the ‘nationality’ of a company should be determined and maintains that the expression ‘European company’ in that provision must therefore be interpreted as designating a company which, first, has been established in Europe or in a European country participating in the MEDIA sub-programme, is registered there, has its registered office there and carries on its activities there and, second, distributes European audiovisual works and films in Europe.
30      The Commission, supported by the EACEA, disputes all of the applicant’s arguments.
Preliminary observations
31      It should be noted that recital 1 of Regulation No 1295/2013 states that the FEU Treaty confers on the European Union the task of contributing to the flowering of cultures of Member States, while respecting their national and regional diversity and at the same time ensuring that the conditions necessary for the competitiveness of the European Union’s industry exist.
32      In that context, Regulation No 1295/2013 establishes, in accordance with Articles 1 and 2 thereof, ‘the Creative Europe Programme for support to the European cultural and creative sectors … implemented for the period from 1 January 2014 to 31 December 2020’.
33      The general objectives of the Creative Europe Programme are, in accordance with Article 3 of Regulation No 1295/2013, first, to ‘safeguard, develop and promote European cultural and linguistic diversity and to promote Europe’s cultural heritage’ and, second, to ‘strengthen the competitiveness of the European cultural and creative sectors, in particular of the audiovisual sector, with a view to promoting smart, sustainable and inclusive growth’.
34      In accordance with Article 4 of Regulation No 1295/2013, the specific objectives assigned to the Creative Europe Programme consist of supporting the capacity of cultural and creative sectors to operate transnationally and internationally; to promote the transnational circulation of cultural and creative works; to strengthen the financial capacity of small and medium-sized enterprises and micro, small and medium-sized organisations in the cultural and creative sectors in a sustainable way; and to foster policy development, innovation, creativity, audience development and the creation of new business and management models.
35      In accordance with Article 5(1) of Regulation No 1295/2013, the Creative Europe Programme recognises ‘the intrinsic and economic value of culture’ and, to that end, supports ‘actions and activities with a European added value in the cultural and creative sectors’.
36      The Creative Europe Programme, as stated in paragraph 6 above, contains a MEDIA sub-programme, provided for in Article 6(b) of Regulation No 1295/2013. It is open to the participation of the Member States, in accordance with Article 8(2) of that regulation. Other European countries, listed exhaustively in paragraph 3 of that article, are also eligible to participate, provided that those countries ‘pay additional appropriations and that, for the MEDIA Sub-programme, they meet the conditions set out in Directive 2010/13/EU of the European Parliament and of the Council’.
37      Article 9 of Regulation No 1295/2013 defines the priorities of the MEDIA sub-programme. Those priorities concern, first, the field of reinforcing the European audiovisual sector’s capacity to operate transnationally and, second, that of promoting transnational circulation.
38      All actions financed by the Creative Europe Programme benefit, in general, from grants, the use of which is regulated by Article 22 of Regulation No 1295/2013, which refers to Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).
39      Thus, in accordance with Article 22(1) of Regulation No 1295/2013, ‘the Commission shall implement the [Creative Europe] Programme in accordance with [Regulation No 966/2012]’. Paragraph 2 of that article provides, in that context, that the Commission is to ‘adopt by means of implementing acts an annual work programme concerning the Sub-programmes’ and states that ‘for grants, the annual work programme shall include the priorities, the eligibility, selection and award criteria, and the maximum rate of co-financing’.
40      In that regard, the Annex to Commission Implementing Decision C(2017) 6002 of 6 September 2017 on the adoption of the 2018 annual work programme for the implementation of the Creative Europe Programme, as amended by Commission Implementing Decision C(2018) 2290 of 23 April 2018 (‘the Annex to the 2018 annual work programme’), emphasises, in its first part, devoted to the objectives and policy framework of that programme, the dual societal and economic objective of the programme, which contributes to the Commission’s policy priorities, in particular with regard to jobs, growth, investment and the digital single market.
41      The Annex to the 2018 annual work programme states, in its second part, relating to the implementation of the Creative Europe Programme, that calls for proposals adopted in that context are financed, in particular, under the budget line entitled ‘Strengthening the financial capacity for [small and medium-sized enterprises] and organisations in the European cultural and creative sectors’.
42      The Annex to the 2018 annual work programme states that certain management activities of the Creative Europe Programme, as stated in paragraph 5 above, were delegated to the EACEA. It states, in that regard, that the calls for proposals managed by the EACEA refer to the Guidelines for the Creative Europe Programme. It states that the guidelines ‘[provide] detailed information on application and selection procedures, criteria and other modalities relating to the calls and [aim] to assist those interested in developing projects or receiving financial support under the Programme and to help them understand its objectives and the supported actions’.
43      In that context, Section 2 of the call for proposals at issue, concerning the criteria for the eligibility of applicants, provides that ‘applicants must be European cinema / theatrical distributors … established in one of the countries participating in the MEDIA Sub-programme and owned directly or by majority participation, by nationals from such countries’. It states that, in particular, ‘EU Member States and overseas countries and territories which are eligible to participate in the Programme pursuant to Article 58 of Council Decision 2001/822/EC’ are eligible under certain conditions.
44      In that regard, Section 6 of the Guidelines, relating to eligibility criteria, states as follows:
‘6. ELIGIBILITY CRITERIA
Applications which comply with the following criteria will be subject to an in-depth evaluation.
6.1. Eligible applicants
Applicants shall be European Cinema/Theatrical distribution companies
European company:
Company owned, whether directly or by majority participation (i.e. majority of shares), by nationals of Member States of the European Union or nationals of the other European countries participating in the MEDIA Sub-Programme and registered in one of these countries.
…’
45      Finally, Section C.3 of the online form by means of which the application file must be submitted, in accordance with Section 5 of the Guidelines (‘the application form’), states that ‘if some shareholders of the applicant are companies [that applicant] must inform the [EACEA] [of] the names of their shareholders and state precisely on an explanatory sheet the information requested to prove that the company is held either directly or by majority share by citizens of Member States of the European Union (or by citizens of other states participating in the MEDIA Programme) and established in those countries’.
The merits of the plea
46      It is necessary, in the first place, to define the concept of ‘European company’, within the meaning of Section 6.1 of the Guidelines, and then, in the second place, to assess, in the light of that definition, the lawfulness of the grounds of the contested decision, in the light of the arguments raised by the applicant.
47      It should also be recalled that, according to settled case-law, when a provision of EU law is being interpreted, account must be taken not only of its wording and the objectives it pursues, but also of its context and the provisions of EU law as a whole (see judgment of 11 March 2020, X (Recovery of additional import duties), C‑160/18, EU:C:2020:190, paragraph 34 and the case-law cited).
48      In the present case, as regards, first of all, the wording of the provision at issue, it is clear from the wording of Section 6.1 of the Guidelines, read in the light of Section C.3 of the application form, that, in order to be eligible for the funding provided for in the call for proposals at issue, a company must, first, be owned by nationals, namely citizens (that is to say, natural persons) of Member States of the European Union or of other European countries participating in the MEDIA sub-programme and, second, be registered or established in one of those countries.
49      Therefore, irrespective of the detailed rules concerning the ownership of the capital of the eligible company, whether that capital is owned directly or by majority participation, within the meaning of Section 6.1 of the Guidelines, a company can be eligible only on the express condition that it is owned by one or more natural persons who are nationals of one of the States or countries referred to in paragraph 48 above.
50      In that regard, contrary to what the applicant in essence claims, the concept of a company owned within the meaning of Section 6.1 of the Guidelines cannot be regarded as implying that such a company should be ‘controlled’ in the management of its day-to-day activities by one or more nationals, within the meaning of that provision. The wording of that section refers expressly only to the concept of participation in the arrangements for owning the capital of the European company.
51      Section 6.1 of the Guidelines cannot therefore be interpreted, in the absence of any express reference to that effect, as also referring to the concept of control, whereas EU law draws an essential distinction between that concept and the concept of participation in so far as, in accordance with Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), control over an undertaking may be exercised by a shareholder who holds less than the majority of the shares in that same undertaking.
52      Moreover, in the present case, the applicant does not adduce any evidence capable of establishing, as it maintains, that ‘it must also be a decisive aspect whether and to what extent subsequent companies or shareholders can exercise control over the applicant company’.
53      In so far as the wording of Section 6.1 of the Guidelines expressly provides that the concept of majority participation in the applicant company refers to the holding of the majority of the shares in that company, such an assumption will be fulfilled, a fortiori, in the event that majority participation, within the meaning of that provision, leads to all the shares in that company being held.
54      As regards, next, the purpose of the Guidelines, it must be recalled that they were adopted on the basis of Regulation No 1295/2013, as is apparent from Section 1 of those provisions, and that they meet the objectives of the MEDIA sub-programme in the field of the promotion of transnational circulation, set out in Section 2.1 of those provisions, through support for theatrical distribution and the implementation of transnational marketing activities, branding, distribution and exhibition of audiovisual works.
55      In that regard, in accordance with Section 2.2 of the Guidelines, the aim of the Automatic Scheme for the distribution of films, referred to in the call for proposals at issue, is to encourage and support the widest possible transnational distribution of recent European films by providing funds to distributors with a view to further investment in the promotion and distribution of the films thus supported. That scheme is also intended to encourage the development of links between the production and distribution sectors, thereby improving the competitiveness of European companies.
56      As regards, lastly, the context of Section 6.1 of the Guidelines, it should be noted that Section C.3 of the application form, referred to in Section 5 of those provisions, expressly provides, as stated in paragraph 45 above, for the situation in which a company which is owned indirectly by a number of shareholding companies may be recognised as eligible for funding, since, in that case, that form requires the applicant to provide the information requested in order to prove that the company is owned, directly or by majority participation, by citizens of the Member States of the European Union or of the other countries participating in the MEDIA sub-programme.
57      In those circumstances, having regard to the wording of Section 6.1 of the Guidelines, the aim of the Automatic Scheme for the widest possible transnational distribution of European films and the context of which that provision forms part, the concept of ‘European company’, within the meaning of that provision, must be interpreted as referring to a company in which the majority or all of the shares are held by one or more natural persons who are nationals of one of the States or countries referred to in that section, either that such natural person(s) hold(s) the capital of that company directly, where no level of shareholding exists between such natural person(s) and the company concerned, or that such natural person(s) participate(s) indirectly through a plurality of shareholding companies.
58      In that context, the grant awarded under the call for proposals at issue under the MEDIA sub-programme benefits, to the greatest possible extent, companies owned by natural persons who are nationals of one of the Member States of the European Union or of one of the other European countries participating in that sub-programme, with the result that the European Union, in accordance with the task entrusted to it by the FEU Treaty, set out in recital 1 of Regulation No 1295/2013, and recalled in paragraph 31 above, ensures in particular that the conditions necessary for the competitiveness of its industry exist.
59      Contrary to what the applicant claims, such an interpretation responds to both the general and specific objectives, laid down by Regulation No 1295/2013, under which the Creative Europe Programme aims, in particular, as is apparent from paragraphs 33 and 34 above, to increase the competitiveness of the European cultural and creative industries by means of the sustainable reinforcement of the financial capacity of companies in those sectors.
60      The applicant’s arguments do not call that interpretation into question.
61      In the first place, a company ‘owned by majority participation’, within the meaning of Section 6.1 of the Guidelines, should not be confused with a company ‘owned directly by majority participation’, as the scope of that provision would otherwise be disregarded.
62      Similarly, the concept of a company owned directly, within the meaning of Section 6.1 of the Guidelines, cannot be interpreted as meaning that, where the applicant company is directly owned by one or more other companies, that applicant company may be regarded, for the purposes of that provision, as being directly owned by one or more natural persons holding the nationality of one of the Member States of the European Union or of one of the other European countries participating in the MEDIA sub-programme. That is so in so far as a natural person must not be confused legally with a company, which may constitute a legal person distinct from the natural persons of which it is composed.
63      Moreover, although Regulation No 1295/2013 expressly recognises, in Article 5 thereof, referred to in paragraph 35 above, the economic value of culture, the applicant’s interpretation would potentially lead to the financing – under an EU programme, and on a budget line, as set out in paragraph 41 above, dedicated to reinforcing the financial capacity of companies in the European cultural and creative sectors – of actions and activities without European added value in the cultural and creative sectors, by allowing the profits generated by such activities to benefit the ultimate shareholders of companies which are not nationals of one of the Member States of the European Union or of one of the other European countries participating in the MEDIA sub-programme.
64      The interpretation of the concept of ‘European company’, within the meaning of Section 6.1 of the Guidelines, proposed by the applicant would therefore undermine the very purpose of the 2018 annual work programme, as set out in paragraph 40 above, which is to contribute to the Commission’s policy priorities with regard to employment, growth and investment in the European cultural and creative industries, and its application would weaken the competitive position of European companies and the ability of the European Union to achieve the aim of the Automatic Scheme, which is to provide, as recalled in paragraph 55 above, funds to distributors for further investment in the promotion and distribution of European films.
65      Consequently, the Commission was entitled to find, without erring in law, in paragraph 77 of the contested decision, that, in the light of the general objective of the Creative Europe Programme, ‘the profits generated by the activities associated to the actions funded under the Programme [could not] directly benefit ultimate shareholders from third countries or countries not participating in the MEDIA sub-programme, as that would ultimately weaken the competitiveness of the European cultural and creative sectors’.
66      In the second place, contrary to what the applicant claims in that regard, the use by the beneficiary company of the grants awarded, under the call for proposals at issue, in the context of the MEDIA sub-programme, which relates to the conditions governing the eligibility of actions eligible for funding in that regard, as defined, in particular, in Section 6.2 of the Guidelines, has no bearing on the assessment, and for the application, of the eligibility criteria relating to applicants, which are covered by Section 6.1 of those provisions.
67      Therefore, the circumstance that such a company would use the grant received in accordance with the priorities of the MEDIA sub-programme laid down by Article 9(2)(a) and (b) of Regulation No 1295/2013 is irrelevant for the purpose of assessing whether a company meets the conditions laid down in Section 6.1 of the Guidelines, and whether it may be regarded as a ‘European company’ within the meaning of that provision.
68      As is apparent from paragraph 37 above, the Guidelines lay down the priorities of the MEDIA sub-programme in the field of the promotion of transnational circulation. Those priorities consist, first, in ‘supporting theatrical distribution through transnational marketing, branding, distribution and exhibition of audiovisual works’ and, second, in ‘promoting transnational marketing, branding and distribution of audiovisual works on all other non-theatrical platforms’.
69      Although such priorities, as recalled in paragraphs 54 and 55 above, are taken into account in the interpretation of Section 6.1 of the Guidelines, in particular in order to ensure the widest possible implementation of those priorities, as stated in paragraph 58 above, such an interpretation, as is apparent from paragraph 57 above, cannot go beyond the actual wording of those provisions.
70      The fact that a company contributes, in accordance with Article 9(2)(a) and (b) of Regulation No 1295/2013, to ‘support the distribution of European audiovisual works and films, and, in particular, the cross-border distribution of films in Europe’ does not thus make it possible to assess whether such a company is owned by a natural person holding the nationality of a Member State of the European Union or of another European country participating in the MEDIA sub-programme, or whether such a company is established or registered in one of those States or countries.
71      In the third place, the applicant’s argument that the objective assigned to the MEDIA sub-programme, as defined in paragraph 70 above, to ‘support the distribution of European audiovisual works and films’, must be interpreted in the light of the general and specific objectives of the Creative Europe Programme, defined in Article 3(a) of Regulation No 1295/2013 and in Article 4(a) to (c) of that regulation, is therefore ineffective.
72      In any event, it cannot be inferred from the objectives assigned to the Creative Europe Programme, as set out in the articles relied on by the applicant, and recalled in paragraphs 33 and 34 above, that the concept of ‘European company’, within the meaning of Section 6.1 of the Guidelines, must be interpreted as referring to a company registered in a Member State of the European Union or in a country participating in the MEDIA sub-programme which is ‘creatively managed and operative in Europe … [and] distributes European audiovisual works and films in Europe (and possibly worldwide)’.
73      In the fourth place, even if the interpretation advocated by the applicant were, moreover, consistent with Article 2(3) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1), that would be irrelevant for the purposes of assessing the concept of ‘European company’ within the meaning of Section 6.1 of the Guidelines. Neither that provision nor any provision of Regulation No 1295/2013 on the basis of which those guidelines were adopted refers to that directive in order to define that concept. Furthermore, the applicant does not adduce any relevant evidence to show that the contested decision, in so far as it applies that section, should have taken that directive into account.
74      In that regard, Article 2(3) of the Audiovisual Media Services Directive concerns the conditions for a media service provider to be regarded as being established in a Member State, that is to say, the conditions under which that service provider is established. It cannot therefore be used, in any event, and independently of its scope, to interpret the first condition laid down in Section 6.1 of the Guidelines, which does not concern the place of establishment of a European company, but the nationality of its owners.
75      In the fifth place, the applicant’s claim that the concept of ‘European company’ within the meaning of Section 6.1 of the Guidelines, as adopted by the Commission, contradicts the concept of a European work in Regulation No 1295/2013, is also ineffective, in that that concept of ‘European company’ must be interpreted in the light of the definition given in Article 1(1)(n) of the Audiovisual Media Services Directive, read in conjunction with Article 1(3) of that directive. The same applies to the applicant’s argument that the interpretation of the latter concept must, in essence, take account of the objective, also pursued by Regulation No 1295/2013, of protecting the European cinematographic industry, as defined in Article 16(1) of that directive.
76      First, Article 1(1)(n) of the Audiovisual Media Services Directive defines the concept of a European work as including, inter alia, ‘works originating in Member States’ and ‘works originating in European third States party to the European Convention on Transfrontier Television of the Council of Europe and fulfilling the conditions of paragraph 3’.
77      Article 1(3) of the Audiovisual Media Services Directive provides as follows:
‘The works referred to in [point (n)] … of paragraph 1 are works mainly made with authors and workers residing in one or more of the States referred to in those provisions provided that they comply with one of the following three conditions:
(i)      they are made by one or more producers established in one or more of those States;
(ii)      the production of the works is supervised and actually controlled by one or more producers established in one or more of those States;
(iii)      the contribution of co-producers of those States to the total co-production costs is preponderant and the co-production is not controlled by one or more producers established outside those States.’
78      Thus, the circumstance, relied on by the applicant, that it follows from Article 1(3) of the Audiovisual Media Services Directive that ‘the origin of the individual persons involved and the location of the production companies’ are decisive in the definition of a European work cannot, in any event, preclude the taking into account, for the purposes of defining a ‘European company’, within the meaning of Section 6.1 of the Guidelines, of the shareholding structure of such a company, where such provisions of that directive have neither the object nor the effect of defining the nationality of the shareholders of those companies producing or distributing European works within the meaning of that directive, nor the arrangements for holding the capital of those companies.
79      Second, Article 16(1) of the Audiovisual Media Services Directive provides that ‘Member States shall ensure, where practicable and by appropriate means, that broadcasters reserve for European works a majority proportion of their transmission time’. In any event, even if such an objective were also pursued and implemented, as regards audiovisual works, in particular cinematographic works, by Regulation No 1295/2013, in the context of the Creative Europe Programme, such an objective, which concerns solely the transmission of European works, cannot, on its own, enable the concept of a European work as such to be defined, nor, a fortiori, to establish that ‘the Directive and the Regulation can only be based on a uniform notion of work’.
80      In that regard, the circumstance that the Commission, in its interim assessment report on the Creative Europe Programme for the years 2014 to 2020, addressed to the European Parliament and the Council, stated that the MEDIA sub-programme ‘[would] support the strengthened promotion of European works envisaged by the Audiovisual Media Services Directive’ is also not sufficient to establish that the concept of ‘European company’, within the meaning of Section 6.1 of the Guidelines, had to take account of the concept of a European work within the meaning of that directive.
81      Moreover, a company cannot be confused with the goods or works which it is liable to produce or distribute. The fact that works distributed or produced by a company are made by ‘workers residing in one or more of [the Member States of the European Union or one or more European third States party to the European Convention on Transfrontier Television of the Council of Europe and] by one or more producers established in one or more of those States’ clearly cannot establish that the owner or owners of that company are natural persons holding the nationality of a Member State of the European Union or of another European country participating in the MEDIA sub-programme.
82      Accordingly, the applicant is not justified in relying on the Audiovisual Media Services Directive in order to claim that the concept of ‘European company’, within the meaning of Section 6.1 of the Guidelines, should be interpreted as referring ‘only to direct ownership, that is to say the direct participation of shareholders’.
83      Consequently, the Commission did not err in law in finding, as is apparent from paragraph 80 of the contested decision, that a ‘European company’, within the meaning of Section 6.1 of the Guidelines, was to be ‘considered to be “owned directly” by Member State nationals or nationals of a country participating in the MEDIA sub-programme in a situation where the company’s ultimate shareholders directly [owned] [that] company, without any intermediate level of shareholding between them and [that] company, whereas a company [was] considered to be “owned by majority participation” in a situation where the owners at the ultimate level of shareholding, that is to say the shareholders that ultimately [owned] the company, [did] so through one or several layers of intermediate owners’.
84      In the light of all of the foregoing, the first plea in law must be rejected.
The second plea in law, alleging an error of assessment in the application to the present case of Section 6.1 of the Guidelines
85      The applicant divides this plea into three parts. It submits, in the first place, that the Commission made an error of assessment in finding that the applicant could not be regarded as being ‘owned directly’, within the meaning of Section 6.1 of the Guidelines, by Leonine Holding GmbH.
86      The Commission, supported by the EACEA, contends that this part of the plea must be rejected.
87      In the present case, it is apparent from the documents before the Court, in particular Annex A.8 to the application, that KKR European Fund IV holds 67.3% of the capital of KKR Show Aggregator L.P., which itself holds 93.2% of the capital of SHOW TopCo SCA, which in turn holds, directly and through intermediate companies, 96.5% of the capital of SHOW Holding SCA.
88      SHOW Holding holds 100% of the capital of Show German HoldCo GmbH, which holds 100% of the capital of Show German AcquiCo GmbH, now Leonine Holding.
89      Leonine Holding holds 100% of the applicant’s capital.
90      It thus follows from the applicant’s capital structure, first, that it is owned by a chain of shareholder companies and, second, in view of the percentage holding of each intermediate company in the capital of the following company within the chain of ownership, as described in paragraphs 87 to 89 above, that KKR European Fund IV ultimately holds, through those intermediate companies, of which Leonine Holding is the last, 60.5% of the applicant’s capital, that is to say, the majority of the shares.
91      The applicant is therefore not directly owned by natural persons having the nationality of a Member State of the European Union or of another European country participating in the MEDIA sub-programme and Leonine Holding is neither its ultimate majority shareholder nor its sole shareholder.
92      In addition, it is not apparent from the documents before the Court, and the applicant does not claim, that the shareholders of Leonine Holding are natural persons having the nationality of one of the Member States of the European Union or of one of the other European countries involved in funding the MEDIA sub-programme.
93      Lastly, the circumstance that Leonine Holding exercises ‘strategic, operational and editorial oversight’ over the applicant is irrelevant for the purposes of the application of Section 6.1 of the Guidelines. It is apparent from paragraph 50 above that the wording of that provision refers expressly only to the concept of participation in the arrangements for holding the capital of the applicant company and that it cannot, in the absence of any express reference to that effect, and in the light of the applicable EU law, as stated in paragraph 51 above, be interpreted as referring also to the concept of oversight relied on by the applicant.
94      In those circumstances, having regard to the definition of a ‘European company’, within the meaning of Section 6.1 of the Guidelines, as set out in paragraph 57 above, the applicant is not justified in claiming that, for the purposes of the application of those provisions, it had to be regarded as being directly owned by Leonine Holding.
95      The applicant submits, in the second place, that the Commission made an error of assessment in finding that the applicant could not, in essence, be regarded as being ‘owned by majority participation’ by KKR European Fund IV, its ultimate shareholder, for the purposes of applying Section 6.1 of the Guidelines.
96      The Commission, supported by the EACEA, contends that this part of the plea must be rejected.
97      As a preliminary point, it should be noted that, according to Section 5 of the Guidelines, relating to ‘Eligibility requirements’, applications submitted in the context of the call for proposals at issue must be submitted using the application form, which is available online at the address indicated in Section 14.3 of those guidelines. Section 14.3 states that ‘applicants shall ensure that all the documents requested and mentioned in the [application form] are attached to [that form]’.
98      Section C.3, entitled ‘Shareholding’, of the application form presents a table to show the structure of the candidate’s shareholding, specifying, for each shareholder, the name, nationality and percentage held of the capital of the applicant company.
99      Section C.3 of the application form states that ‘in the case of insufficient information, the distributor may be considered as ineligible’.
100    It follows from all of those provisions that the EACEA must be in a position to take an informed decision on the circumstances demonstrating compliance with the eligibility criteria.
101    Information of the EACEA that is as complete and appropriate as possible is indeed the only information that is compatible with the principle of sound financial management and monitoring of the use of the European Union’s budget resources for their intended purposes. Incomplete or incorrect information supplied by an applicant therefore cannot lead the EACEA to recommend the Commission to finance the distribution of a film where there is doubt as to whether the distributor meets the conditions laid down by the applicable legislation (see, to that effect, judgment of 4 February 2016, Italian International Film v EACEA, T‑676/13, EU:T:2016:62, paragraph 63).
102    In the present case, the applicant declared, in the application form, that it was 100% owned by a German company called RTL Television GmbH.
103    After the change in its shareholding structure, noted in paragraph 11 above, the applicant sent the EACEA an overview of the various shareholdings in its capital, as set out in Annex A.8 to the application. It also sent an extract from its entry in the commercial register, together with a document entitled ‘Explanatory note on the acquisition of Universum/Leonine Distribution’, as reproduced in Annex A.9 to the application. The applicant submits, in that regard, that that note ‘[describes] the exercise of editorial, strategic and operational oversight by Show German AcquiCo GmbH [now Leonine Holding] and Universum’s [now the applicant itself] continuing engagement in the distribution of European films’.
104    As stated in paragraph 12 above, the EACEA requested additional information from the applicant by email of 16 July 2019. That information was intended to enable it to establish the shareholding structure of the applicant, and to ascertain whether it was ‘owned directly or by majority participation by nationals from countries participating in the MEDIA sub-programme’. To that end, the EACEA invited the applicant to provide an ‘official document, dated and signed by [its] legal representative …, listing the shareholders, their nationality and % of shares’. It pointed out that such a request for information also concerned ‘any company listed as shareholders’ and, where appropriate, any shareholder in those shareholders.
105    By email of 29 July 2019, the applicant replied, in essence, to the EACEA that, in so far as it was owned by private equity investment funds, there existed, at the various levels of shareholding, a large number of shareholders or limited partners, and that it did not seem to the applicant ‘necessary to identify and list these passive/minority investors as they [could not] exercise any form of control’. It requested the EACEA to clarify the definition that it gave of the concept of majority participation and suggested providing it with information ‘in the form of a (more detailed) corporate chart (signed by a legal representative of the company as requested)’.
106    By letter of 6 February 2020, after withdrawing its decision refusing the applicant’s initial request, the EACEA, as noted in paragraphs 16 and 17 above, invited the applicant, in the context of the review of its request, to submit its observations by suggesting that it pay particular attention ‘[to] the illustration of the entire ownership structure of [the applicant], and of all companies directly and/or indirectly holding shares in the latter, highlighting all the links between the entities, the percentage of the participation, and the nationality of all the shareholders involved’.
107    In its reply of 5 March 2020, presented as a request for review, the applicant explained, in essence, as is apparent from the ‘Summary’ part of its reply, that it did not have an ultimate shareholder holding all or the majority of its shares. In particular, it noted that ‘KKR & Co. Inc., [an entity established in New York (United States)] [was] not [its] ultimate owner … but only the indirect general partner of KKR European Fund IV [an entity established in the] Cayman Islands in which it neither directly nor indirectly [held] all or a majority of the shares’, adding that ‘the majority of the shares in this fund [were] held by a high number of passive investors, each of whom [held] minority participations’. It stated, in essence, that all strategic decisions concerning it were taken in Germany and that it participated actively in the distribution of audiovisual works in Europe.
108    Next, in the administrative appeal of 12 June 2020 brought under Article 22 of Regulation No 58/2003 seeking review of the legality of the EACEA’s decision of 12 May 2020, the applicant, in essence, repeated its arguments previously put forward against the EACEA’s initial refusal, as reproduced, in essence, in the present action.
109    In support of the administrative appeal, reproduced in Annex A.18 to the application, the applicant provided a number of documents. Among these, it sent to the Commission, in particular, an overview of the various shareholdings in its capital, submitted in Annex A.8 to the application; an explanatory note, reproduced in Annex A.9 to the application; an extract from the commercial register attesting to its change of company name, set out in Annex A.14 to the application; and the copy of the control agreement with Leonine Holding, contained in Annex A.10 to the application.
110    Lastly, by email of 15 July 2020, reproduced in Annex A.19 to the application, the applicant informed the Commission of the ‘intended cooperation [by Leonine Holding] with the newly founded company Mediawan Alliance’ and explained that that project illustrated its desire to strengthen European cinematographic culture by entering into ‘new cooperation with European partners, as intended by the European legislature in Articles 3, 4 and 9 of [Regulation No 1295/2013]’.
111    It should be noted that none of the documents submitted by the applicant makes it possible to assess precisely the applicant’s current capital structure.
112    In particular, it is not apparent from any of the documents at issue that the applicant, contrary to the requirements of Section C.3 of the application form, referred to in paragraphs 45 and 98 above, provided the names of all of its shareholders and their nationality and the percentage of their shares in its capital. Such information was, however, sufficiently clear and precise that, contrary to what the applicant sought to argue before the EACEA, as is apparent from paragraph 104 above, it could easily be identified and communicated.
113    Although that information on the structure of its shareholding was requested from it explicitly on several occasions in the course of the proceedings, the applicant confined itself, in essence, to communicating a simple overview of its capital structure, from which it is apparent, solely, that KKR European Fund IV is its ultimate majority shareholder and that that entity, established in the Cayman Islands, is a company with its registered office in New York. Although it is apparent from Annex A.8 to the application that more than 85 investors hold shares in KKR European Fund IV, there is nothing in the documents before the Court to support the applicant’s assertion that that capital is held by a majority of European investors and to determine their respective percentage of shares in order to verify that the majority of the shares are actually held by natural persons holding the nationality of one of the Member States of the European Union or of one of the other European countries participating in the MEDIA sub-programme.
114    Since the only evidence provided by the applicant did not make it possible for the EACEA to conclude that KKR European Fund IV was held by natural persons having the nationality of one of the Member States of the European Union or of one of the other European countries participating in the MEDIA sub-programme, the Commission was therefore entitled to find, as is apparent from paragraphs 84 and 85 of the contested decision, that the EACEA had not been in a position to verify, in the absence of detailed information on the shareholders of that fund, concerning in particular their nationality and the percentage of shares held, whether the applicant was owned, by way of a majority participation, by natural persons having the nationality of one of those States or those countries.
115    In those circumstances, the arguments relied on by the applicant to establish that it had to be regarded as being owned by majority participation by KKR European Fund IV for the application of Section 6.1 of the Guidelines are, in any event, irrelevant.
116    First of all, for the purposes of assessing compliance with the conditions for submitting the applicant’s application, as defined in Section C.3 of the application form, no relevance attaches to the circumstance, assuming it to be correct, that, under ‘section 29 sentence 5 of the [State] Broadcasting Treaty [of reunified Germany of 31 August 1991]’ and the ‘Directive of the German Commission on concentration in the media sector concerning the exemption from the obligation to notify minor changes in shareholdings in listed companies of 14 July 1997 as amended on 10 January 2017’, minor changes in shareholdings in broadcasting companies, listed companies or private equity funds would not be subject to notification to the competent national authorities.
117    Next, the circumstance that ‘the financial involvement of KKR [European Fund IV] in [Leonine] Group (formerly Show Group) supports and reinforces the objectives of [Regulation No 1295/2013]’ cannot usefully be taken into account in assessing whether that fund, as the applicant’s ultimate majority shareholder, would enable the applicant, for the purposes of the application of Section 6.1 of the Guidelines, to be regarded as being owned by majority participation by natural persons holding the nationality of one of the countries participating in the MEDIA sub-programme.
118    Furthermore, it is also irrelevant that the Cayman Islands, where that fund is registered, is one of the overseas countries and territories associated with the European Union, pursuant to Article 198 TFEU and Annex II thereto in conjunction with Article 1 of and Annex IA to Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community (‘Overseas Association Decision’) (OJ 2001 L 314, p. 1).
119    Furthermore, it is also irrelevant for the application of the eligibility criteria set out in Section 6.1 of the Guidelines, even if that circumstance were correct, that KKR European Fund IV might fulfil ‘the conditions set by the Commission for investment institutions’ holdings in European companies’, as defined in paragraph 44 in Section 5.2 of the Commission Notice on the Interpretative guidelines on Regulation (EC) No 1008/2008 of the European Parliament and of the Council – Rules on Ownership and Control of EU air carriers (OJ 2017 C 191, p. 1). That regulation governs the licensing of EU air carriers and the right of those carriers to operate air services within the European Union and cannot therefore have either the same object or the same scope as the Guidelines, as the applicant itself acknowledges.
120    In those circumstances, the applicant is not justified in claiming that the Commission erred in finding that it could not be regarded as ‘owned by majority participation’ by KKR European Fund IV, its ultimate shareholder, for the purposes of the application of Section 6.1 of the Guidelines.
121    The applicant submits, in the third and last place, that the Commission made an error of assessment in refusing to classify it as a European company on the ground that it did not take account, in essence, of the past and future use of the funds paid in respect of the financing of the MEDIA sub-programme.
122    The Commission, supported by the EACEA, contends that this part of the plea must be rejected.
123    In that regard, it is irrelevant that the funds paid would have been used for the distribution of European productions in Europe or that the profits generated would, in turn, have been invested in the circulation of European films across Europe.
124    Similarly, in order to assess whether the applicant could be regarded as a European company, no relevance attaches to the fact that it participated actively in the financing of European creations for decades, through, inter alia, the distribution of French films and films presented in the context of international festivals, or that it created jobs in Europe, whereas, moreover, even supposing that it had in the past met the eligibility criteria for being a candidate, such a past circumstance cannot prejudge the examination of its eligibility for the programme at issue.
125    The same applies in regard to the applicant’s claim that it was able to ‘safeguard cultural diversity and strengthen the competitiveness of Europe’s cultural and creative sectors’ and to ‘make a contribution … to creating plurality of media sources and combating media concentration in Europe’.
126    All of those circumstances and arguments, as set out in paragraphs 123 to 125 above, do not concern either the first or the second of the two conditions for classification as a European company, within the meaning of Section 6.1 of the Guidelines, as set out in paragraph 48 above.
127    Consequently, the Commission did not err in finding, in confirmation of the EACEA’s decision of 12 May 2020, that the applicant could not be regarded as a European company within the meaning of Section 6.1 of the Guidelines.
128    In the light of all of the foregoing, the Commission did not err in its application of Section 6.1 of the Guidelines to the applicant’s case in concluding, in paragraph 96 of the contested decision, that the EACEA had acted in accordance with the applicable rules in deciding to regard the applicant as ineligible and by refusing to sign the grant agreement.
129    The second plea in law must therefore be rejected.
The third plea in law, alleging a failure to carry out an examination
130    The applicant claims, in essence, that the Commission vitiated the contested decision by failing to carry out an examination in that it did not take into account all the evidence which the applicant had submitted to the EACEA and in the context of the administrative appeal.
131    First of all, the applicant submits that the Commission failed to take account of the elements and arguments produced in order to establish that it was in a position to achieve the objectives of the Creative Europe Programme, in particular those of the MEDIA sub-programme aimed, in essence, at supporting the distribution of European cinematographic works. In particular, the applicant claims that the Commission did not take account, in the context of the examination, of its past conduct, namely the fact that the funds received were always used in accordance with the objectives of that programme.
132    In that regard, as has been stated in paragraphs 67 to 71 above, the fact that the applicant is in a position to achieve the objectives of the Creative Europe Programme, as shown by its past involvement in the financing of the European cultural sector, has no bearing on the Commission’s conclusion that it should not be classified as a ‘European company’ within the meaning of Section 6.1 of the Guidelines. Even if the Commission did not take sufficient account of such arguments, such a circumstance is therefore irrelevant in regard to the legality of the contested decision.
133    In any event, as the Commission correctly submits, it is apparent from the reasoning of the contested decision that the applicant’s arguments, which are the subject of paragraphs 23 to 44 of that decision, and as set out in particular in paragraphs 34 to 40 of that decision, were in fact taken into account in the Commission’s assessment, as set out in paragraphs 76 to 95 of that decision, in particular in paragraphs 76 to 79 and 89 to 91 thereof.
134    Next, the applicant submits that the Commission failed to take account of the fact that KKR European Fund IV was registered in the Cayman Islands. However, since that fact is irrelevant for the purpose of assessing the classification of the applicant as a ‘European company’, within the meaning of Section 6.1 of the Guidelines, as found in paragraph 118 above, it is also ineffective as regards the question whether the applicant could be regarded as being owned by majority participation by that fund for the application of those provisions.
135    Lastly, the applicant claims that the Commission did not take account, in the administrative appeal brought under Article 22(1) of Regulation No 58/2003, of the evidence which it had submitted to the Commission for the first time on 15 July 2020.
136    Suffice it to recall, in that regard, that the evidence submitted by the applicant on 15 July 2020 concerns, as stated in paragraph 110 above, the intended cooperation between Leonine Holding and the company Mediawan Alliance. That evidence is therefore irrelevant to the assessment of the eligibility criteria for the call for proposals at issue pursuant to Section 6.1 of the Guidelines, as is apparent from paragraphs 110 and 112 above.
137    Irrespective of the question of its admissibility in the context of the examination under Article 22(1) of Regulation No 58/2003, the complaint alleging failure by the Commission to examine the evidence submitted by the applicant on 15 July 2020 must therefore be rejected as ineffective.
138    In the light of all of the foregoing, the third plea in law must be rejected.
The fourth plea in law, alleging infringement of the principle of proportionality
139    The applicant submits, in essence, that, in order to ensure that the funds of the MEDIA sub-programme had been used in accordance with the objectives of Regulation No 1295/2013, it would have been sufficient for the Commission to grant the funding sought subject to the condition that the applicant would have to justify its use a posteriori, failing which it would have had to repay the amount.
140    The applicant therefore maintains that, in those circumstances, the outright rejection of its application for funding ‘without examining the actual use of the funds or instead of making them subject to the resolving condition of use in accordance with the [legislation]’ infringes the principle of proportionality, expressly enshrined in Article 5(4) TEU.
141    The Commission, supported by the EACEA, disputes the applicant’s arguments.
142    It should be recalled that the principle of proportionality, as a general principle of EU law, requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. That principle is recalled in Article 5(4) TEU and in Article 1 of the Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the EU Treaty and the FEU Treaty (judgments of 4 June 2020, Hungary v Commission, C‑456/18 P, EU:C:2020:421, paragraph 41, and of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraph 142).
143    Suffice it to note that none of the provisions of the legislation applicable to the present dispute, as set out in paragraphs 31 to 45 above, which the applicant does not claim to be contrary, in itself, to the general principle of EU law on which it relies, provides, in any event, contrary to what the applicant claims, for the possibility, and a fortiori the obligation, to grant provisional funding to any company replying to the call for proposals at issue, subject to subsequent verification of its actual use in accordance with Regulation No 1295/2013. The award of the grant is conditional on compliance with the eligibility conditions applicable to applicants and not, in any event, on the subsequent verification of the use of the grant awarded under the call for proposals at issue.
144    In that regard, the possibility of terminating the grant agreement signed with a beneficiary, in the event of a change in the beneficiary’s financial or legal situation likely to affect its implementation, clearly cannot, contrary to what the applicant claims, mean that the grant may, if not must, be awarded, in case of doubt, on a provisional basis, to any applicant, even if not eligible.
145    In the present case, the applicant was requested on several occasions to clarify the content of its application so that the EACEA could assess whether it met the eligibility criteria set out in Section 6.1 of the Guidelines. In the absence of sufficient evidence to assess the eligibility of its application on that point, the Commission was required to confirm the EACEA’s position to reject the applicant’s application for the call for proposals at issue, and the fact that it did not take account of the proposed use of the funds requested cannot, therefore, for that reason, show that the contested decision was disproportionate.
146    In the light of the foregoing, the fourth plea in law must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
147    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
148    Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
149    The EACEA shall bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Leonine Distribution GmbH to bear its own costs and to pay the costs incurred by the European Commission;
3.      Orders the European Education and Culture Executive Agency (EACEA) to bear its own costs.
Marcoulli
Schwarcz
Iliopoulos
Delivered in open court in Luxembourg on 29 June 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.