62016TJ0208
JUDGMENT OF THE GENERAL COURT (Second Chamber)
5 February 2018 (
*1
)
(Research and technological development — Calls for proposals and related activities under the ERC Work Programme 2015 — Framework Programme for Research and Innovation (2014-2020) — Horizon 2020 — Decision of the ERCEA declaring ineligible the proposal submitted by the applicant — Project concerning the identification of mathematical algorithms facilitating the reading and analysis of certain ancient manuscripts — Misuse of powers — Error of fact — Error of law — Manifest error of assessment)
In Case T‑208/16,
Graziano Ranocchia, residing in Rome (Italy), represented by C. Intino, lawyer,
applicant,
v
European Research Council Executive Agency (ERCEA), represented initially by E. Chacon Mohedano, R. Maggio Panizza and L. Moreau, and subsequently by E. Chacon Mohedano, R. Maggio Panizza and F. Sgritta, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU seeking the annulment of (i) ERCEA Decision Ares(2016) 1020667 of 26 February 2016, dismissing the applicant’s request for review of the decision refusing to grant funds for research proposal No 682937, entitled ‘PHercSchools2 — The Hellenistic Philosophical Schools in the Herculaneum Papyri’, (ii) ERCEA Decision Ares(2015) 5922529 of 17 December 2015, refusing to grant funds for that research proposal, and (iii) any prior, subsequent or connected measure linked to those decisions, in particular the list of projects approved for the ‘ERC Consolidator Grant’ support programme made public by the ERCEA’s press release of 12 February 2016.
THE GENERAL COURT (Second Chamber),
composed of M. Prek, President, E. Buttigieg and B. Berke (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
Framework Programme for Research and Innovation Horizon 2020
1
The Framework Programme for Research and Innovation Horizon 2020 was established, on the basis of Articles 173 and 182 TFEU, by Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC (OJ 2013 L 347, p. 104) and Regulation (EU) No 1290/2013 of the European Parliament and of the Council of 11 December 2013 laying down the rules for participation and dissemination in ‘Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020)’ and repealing Regulation (EC) No 1906/2006 (OJ 2013 L 347, p. 81).
2
That programme provides, in particular, that the European Research Council (ERC) is to coordinate and fund research projects through calls for proposals.
3
Article 11 of Regulation No 1290/2013, entitled ‘Calls for proposals’, states in paragraph 1:
‘Calls for proposals shall be issued … taking account in particular of the need for transparency and non-discrimination, and for flexibility appropriate to the diverse nature of the research and innovation sectors.’
4
Article 15 of Regulation No 1290/2013, entitled ‘Selection and award criteria’, is worded as follows:
‘1.   The proposals submitted shall be evaluated on the basis of the following award criteria:
(a)
excellence;
(b)
impact;
(c)
quality and efficiency of the implementation.
2.   Only the criterion referred to in [paragraph 1(a)] shall apply to proposals for ERC frontier research actions.
…
6.   Proposals shall be ranked according to the evaluation results. The selection shall be made on the basis of that ranking.
7.   The evaluation shall be carried out by independent experts.
…’
5
Article 16 of Regulation No 1290/2013 concerns the evaluation review procedure. It reads as follows:
‘1.   The Commission or the relevant funding body shall provide a transparent evaluation review procedure for applicants which consider that the evaluation of their proposal has not been carried out in accordance with the procedures set out in this Regulation, the relevant work programme, work plan or the call for proposals.
2.   A request for review shall relate to a specific proposal, and shall be submitted by the coordinator of the proposal within 30 days of the date on which the Commission or the relevant funding body informs the coordinator of the evaluation results.
3.   The Commission or the relevant funding body shall be responsible for the examination of the request referred to in paragraph 2. The examination shall cover only the procedural aspects of the evaluation, and not the merits of the proposal.
4.   An evaluation review committee composed of Commission staff or of staff of the relevant funding body shall provide an opinion on the procedural aspects of the evaluation process. It shall be chaired by an official of the Commission or of the relevant funding body, from a department other than that responsible for the call for proposals. The committee may recommend one of the following:
(a)
re-evaluation of the proposal primarily by evaluators not involved in the previous evaluation;
(b)
confirmation of the initial evaluation.
5.   On the basis of the recommendation referred to in paragraph 4, a decision shall be taken by the Commission or the relevant funding body and notified to the coordinator of the proposal. The Commission or the relevant funding body shall take such decision without undue delay.
6.   The review procedure shall not delay the selection process of proposals which are not the subject of requests for review.
7.   The review procedure shall not preclude any other actions the participant may take in accordance with Union law.’
6
Article 17 of Regulation No 1290/2013, headed ‘Enquiries and complaints’, states:
‘1.   The Commission shall ensure the existence of a procedure for participants to make enquiries or complaints about their involvement in Horizon 2020.
2.   The Commission shall ensure that information on how to register concerns, enquiries or complaints is made available to all participants and is published on-line.’
7
Article 20 of Regulation No 1290/2013, entitled ‘Time to grant’, provides, in paragraph 2(a), that applicants are to be informed of the outcome of the scientific evaluation of their application within a maximum period of five months from the final date for submission of complete proposals.
8
The European Commission entrusted the management of the Framework Programme Horizon 2020 to the ERC Executive Agency (ERCEA).
9
The legal framework governing management by executive agencies is set out in 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).
10
Article 22 of Regulation No 58/2003 provides for the possibility of administrative proceedings in order to have the Commission conduct a review of legality.
Selection criteria and evaluation procedure for the 2015 calls for proposals
11
For the 2015 calls for proposals, the selection criteria and evaluation procedures were set out in the ERC Work Programme 2015 and in the Rules for the submission of proposals and the related evaluation, selection and award procedures relevant to the Specific Programme of Horizon 2020 (‘the ERC rules’) approved by Commission Decision C(2014) 2454 final of 15 April 2014 on the ERC rules.
12
Furthermore, the calls for proposals are accompanied by information directed at applicants who reply to the calls for proposals in order to obtain grants (‘information for applicants’).
13
The ERC work programme states that, for all ERC frontier research grants, excellence is the sole criterion that will be applied as regards the evaluation of the ground-breaking nature, ambition and feasibility of the research project and also as regards the intellectual capacity, creativity and commitment of the principal investigator.
14
The evaluation procedure is explained in sections 3.6 to 3.8 of the ERC rules and comprises two stages. Only applicants who successfully pass stage 1 are admitted to stage 2. During stage 1, a summary of the project, containing a description of the project (extended synopsis), is evaluated, together with the track record and curriculum vitae of the principal investigator. Only at stage 2 is the complete application, that is to say the detailed research project (scientific proposal), examined and evaluated. That information is, in addition, summarised in the information for applicants and is also attached to the call for proposals.
15
Furthermore, in accordance with the twelfth paragraph of section 3.6.1 of the ERC rules:
‘The judgement of a panel on a proposal and its position in the ranked list is based on the individual assessments and discussion in the panel, and is arrived at by majority vote. The outcome of the panel assessment phase is a rank order list. In the final step of the peer review evaluation, the panel identifies those proposals which are recommended for funding if sufficient funds are available.’
16
It is also apparent from section 3.6.2 of the ERC rules that, if provided for in the ERC work programme, the panel assessment may include interviews with the principal investigator.
17
Moreover, section 1.2.5 of the information for applicants reads as follows:
‘… Please note that the comments by the individual reviewers may not necessarily be convergent — controversy and differences in opinion about the merits of a proposal are part of the “scientific method” and are legitimate.
Furthermore, the ERC panel may take a position that is different from what could be inferred from the comments of the individual reviewers. That is the case for example, if the panel discussion reveals an important weakness in a proposal that had not been identified by the individual reviewers. The panel comments reflect the consensus decision taken by the panel as a whole based on prior remote individual assessments from independent reviewers, which can be non-paid experts as well as panel members, and on a thorough discussion and on the ranking against other proposals during the panel meeting.’
18
Following the peer review evaluation, the ERCEA informs applicants, in accordance with section 3.8 of the ERC rules, of the outcome of the evaluation through an ‘information letter’ sent to the principal investigator and the applicant legal entity.
Evaluation review procedure
19
Under section 3.9 of the ERC rules, an internal review committee may consider requests for evaluation review.
20
In accordance with the fifth paragraph of section 3.9 of the ERC rules:
‘… The committee’s role is to ensure a coherent legal interpretation of such requests and equal treatment of applicants. It provides specialist opinion of the implementation of the evaluation process on the basis of all the available information related to the proposal and its evaluation. It works independently. The committee itself, however, does not evaluate the proposal. If the committee considers that there has been a failing in the evaluation process that may have influenced the decision not to fund the proposal, it may suggest a further evaluation of all or part of the proposal by independent experts. Depending on the nature of the complaint, the committee may review the CVs of the independent experts, their individual comments, and the evaluation report. The committee will not call into question the scientific judgment of appropriately qualified panels of experts.
In the light of its review, the committee will recommend a course of action to the authorising officer responsible for the call. Should the committee consider that there is evidence to support the complaint, it may suggest a partial or total re-evaluation of the proposal by independent experts or to uphold the initial outcome. The committee may make additional comments or recommendations. …’
21
The second paragraph of section 1.2.5.1 of the information for applicants states that the evaluation review procedure deals with shortcomings in the evaluation procedure and, in rare cases, factual errors.
22
Lastly, the eighth paragraph of section 3.9 of the ERC rules explains that the evaluation review procedure does not prevent applicants from resorting to any other means of seeking redress, such as bringing an action before the Court of Justice of the European Union.
Administrative procedure
23
On 30 July 2014, the Commission published in the Official Journal of the European Union the Calls for proposals and related activities under the ERC Work Programme 2015 under Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020) (OJ 2014 C 248, p. 6), following the adoption of Decision C(2014) 5008 of 22 July 2014.
24
On 12 March 2015, the applicant, Mr Graziano Ranocchia, submitted an application for an ERC Consolidator Grant to the ERCEA under the ERC Consolidator Grant 2015 call for proposals, to the SH5 panel — Cultures and Cultural Production (‘the SH5 panel’). His project involved applying X-ray phase-contrast tomography to Herculaneum papyri. The requested grant was EUR 2 million, being the maximum allowable amount, plus an additional amount of EUR 749226 for the purchase of major equipment.
25
The SH5 panel favourably reviewed the applicant’s research proposal at stage 1 of the evaluation. That favourable review was notified to the applicant by letters of 3 and 22 July 2015 and he was invited to attend an interview.
26
On 5 October 2015, the ERCEA received a complaint containing claims of possible scientific misconduct concerning the research proposal submitted by the applicant. According to the complaint, the applicant had used in his proposal unpublished research carried out in another institution by another research group, in particular with the assistance of one of his associates who worked for the research institution in question.
27
Following the examination of the complaint by the ERCEA’s competent internal committee, the applicant was invited, by email of 30 October 2015, to provide comments on the claims.
28
On 5 November 2015, the applicant provided the requested clarification and stated that his associate had never been told about the alleged unpublished research by the rival group.
29
In the light of the examination of the claim alleging scientific misconduct, the responsible authorising officer of the ERCEA, on the recommendation of the scientific council’s committee on conflicts of interest, misconduct and ethical issues, decided to disregard the assessment submitted by one of the remote expert reviewers, who potentially had a conflict of interest due to his close association with the person who lodged the complaint alleging scientific misconduct.
30
At the end of stage 1 of the evaluation, the applicant, in his capacity as principal investigator, attended the final interview with the SH5 panel on 12 November 2015.
31
By letter of 17 December 2015, the ERCEA notified the applicant of Decision Ares(2015) 5922529, by which it decided not to include his research proposal in the list of approved proposals (‘the decision refusing the grant’), as the SH5 panel had found, on the basis of the assessments of the individual reviewers attached to the letter, that it met some, but not all, of the ERC’s evaluation criteria. In that letter, the ERCEA made clear that the SH5 panel had based its judgment on remote assessments and a discussion between panel members.
32
Accordingly, on the basis of the individual assessments of six external reviewers, the final interview with the applicant and the comparison with other research proposals, the SH5 panel decided not to recommend the applicant’s research proposal.
33
The SH5 panel’s criticism of the applicant and his research proposal concerned, in essence, his ability to monitor the technological and financial aspects of the project and the relatively minor role given to post-doctoral researchers.
34
On 21 December 2015, the applicant was notified that the complaint relating to his alleged scientific misconduct had been dismissed by the competent internal committee in consultation with the scientific council’s committee on conflicts of interest, misconduct and ethical issues.
35
On 22 December 2015, the applicant submitted a request for evaluation review under section 3.9 of the ERC rules using the electronic portal available to participants in the context of the Horizon 2020 programme.
36
In his request for review, in the first place, the applicant stated that the recommendations which the ERCEA had forwarded to him in connection with his previous application in 2014 had been followed in the 2015 proposal.
37
In the second place, he rejected the criticism concerning his ability to monitor the technological aspects of the project, stating that such criticism was based not on the written proposal, but on the questions asked at the interview, one of which he had refused to answer. The applicant argued that he should not have been asked that question as it related to physics, while he is a historian and philosopher. Furthermore, a requirement that the principal investigator should be familiar with all the technical aspects of a project, including those falling outside his area of expertise, is at odds with the ERC’s policy of encouraging transdisciplinary proposals. He also made clear that he had answered the other two questions correctly.
38
In the third place, the applicant took issue with the criticism concerning the minor role of post-doctoral researchers, stating that the role given to those young researchers was at the core of the project.
39
In the fourth place, the applicant argued that the SH5 panel’s assessment was disproportionate and placed too much weight on the most unfavourable individual assessment, which he disputed, while the other five assessments were favourable. He claimed that the unfavourable assessment was undoubtedly written by a rival researcher with a conflict of interest and, therefore, could not be taken into account.
40
In the fifth place, the applicant contended, in essence, that the SH5 panel’s decision had evidently been influenced by the unsuccessful scientific misconduct proceedings brought against him, proceedings which he thought had been disclosed to the members of the SH5 panel.
41
On 12 February 2016, the ERCEA issued a press release containing the list of projects approved by the SH5 panel for 2015 (‘the list of approved projects’).
42
By letter of 26 February 2016, the ERCEA notified the applicant of the adoption of Decision Ares(2016) 1020667 on the outcome of the evaluation review (‘the decision of 26 February 2016’).
43
That letter informed the applicant that the review committee had examined his request and verified that the ERC evaluation procedure had been complied with in full, in accordance with the ERC rules and work programme.
44
The ERCEA set out the final conclusions of the review committee in that letter. It is apparent from the letter that the review committee considered that the applicant’s proposal had been evaluated by independent experts who were all specialists in the field of expertise concerned.
45
The letter also stated that the decision refusing the grant had been based not only on the comments of the individual reviewers, but also on the discussion that took place within the SH5 panel and the ranking of the applicant’s proposal against other proposals.
46
In addition, it noted that the outcome of the final evaluation of his research proposal reflected a consensus decision of the SH5 panel, without necessarily endorsing every opinion expressed by the individual reviewers.
47
Furthermore, the review committee found that the applicant’s comments sought to question the scientific evaluation of the reviewers or the SH5 panel, even though that evaluation did not fall within the committee’s remit.
48
Lastly, the review committee found that the ERC rules governing conflicts of interest had been complied with and there was no indication of any conflict of interest affecting the reviewers.
49
It therefore concluded that no procedural errors had been committed in the evaluation process.
50
On the basis of the findings of the review committee, the ERCEA informed the applicant that the decision refusing the grant continued to stand.
Procedure and forms of order sought by the parties
51
By application lodged at the Court Registry on 29 April 2016, the applicant brought the present action.
52
The ERCEA lodged its defence on 19 July 2016.
53
The applicant lodged his reply on 6 September 2016. The ERCEA lodged its rejoinder on 28 October 2016.
54
On 13 July 2017, the Court put a question to the parties on the admissibility ratione temporis of the action so far as concerns some of the measures in dispute. The ERCEA and the applicant answered the Court’s question on 19 and 28 July 2017, respectively.
55
The applicant claims that the Court should:
–
annul the decision of 26 February 2016;
–
annul the decision refusing the grant;
–
annul any prior, subsequent or connected measures linked to those decisions, including the list of approved projects;
–
order that his research proposal be included in the ranked list of projects approved and funded under the 2015 call for proposals;
–
order the production of certain documents;
–
order the ERCEA to pay the costs.
56
The ERCEA contends that the Court should:
–
dismiss the action as unfounded;
–
dismiss the request for the production of documents as irrelevant;
–
order the applicant to pay the costs.
Law
57
In the interests of procedural economy and in accordance with the principle of the proper administration of justice, the Courts may give judgment in an action without necessarily having to rule on all the pleas in law and arguments put forward by the parties (see, by analogy, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52). In the present case, the Court considers that the action may be examined as to the substance without it being necessary to rule on its admissibility.
Claims for annulment of the decision refusing the grant and the decision of 26 February 2016
58
In support of his action, the applicant relies on three pleas in law, alleging (i) misuse of powers, on the basis that the assessment of his research proposal was manifestly unreasonable, (ii) misuse of powers on the basis that the facts were distorted, and (iii) misuse of powers on the basis of a breach of the ERCEA’s rules on the evaluation of research proposals.
First plea in law, alleging misuse of powers on the basis that the assessment of the research proposal was manifestly unreasonable
59
In the first place, the applicant argues, in essence, that the decision refusing the grant is vitiated by misuse of powers. He asserts that the reasons which resulted in the SH5 panel rejecting his research proposal are contradicted by the documentation provided and fall outside the scope of the scientific evaluation procedure. He also states that he had control over the proposal and the areas concerned and that he replied to all questions, except one.
60
In the second place, the misuse of powers is not exclusively limited to the subject matter of the evaluation; it also concerns the correct transposition of the individual assessments of the remote reviewers in the context of the overall final evaluation of the SH5 panel.
61
That final evaluation is unreasonable and disproportionate because five extremely favourable reviews and one partly unfavourable review should have resulted in an optimal overall assessment and in the approval of the applicant’s research proposal.
62
The ERC rules were infringed as the SH5 panel’s assessment merely outlined the most unfavourable individual review, which the applicant infers from the fact that the main reason for the SH5 panel’s rejection and the argument of the fifth reviewer is crucially the same.
63
In the third place, the applicant takes issue with the review committee for having ‘ignored the clear distortion of the criterion of scientific excellence’ and having denied the existence of a conflict of interest as regards the fifth reviewer, who was not removed.
64
He argues that, contrary to the opinion of the review committee, his grievances concern matters of procedure and methodology which fall within the remit of the committee; they do not concern the scientific assessment of the project.
65
The ERCEA disputes that line of argument.
66
In the context of this plea, the applicant complains that the ERCEA essentially misused its powers because the assessment of his proposal was manifestly unreasonable and the ERC rules on evaluation procedures were infringed.
67
In support of that argument, the applicant submits, in essence, that the SH5 panel committed an error since the reasons for the decision refusing the grant are contradicted by the documentation provided and the panel failed to transpose correctly the assessments of the individual reviewers, as evidenced by the divergence between those assessments and the panel’s final evaluation. It follows that the aim pursued by the SH5 panel was not that of a scientific evaluation.
68
Furthermore, the applicant asserts that the review committee was wrong to ignore the ‘clear distortion of the criterion of scientific excellence’, deriving from the fact that the SH5 panel exclusively took into account the only unfavourable individual review and denied the existence of a conflict of interest.
69
According to the case-law, a measure is vitiated by a misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (judgment of 10 March 2005, Spain v Council, C‑342/03, EU:C:2005:151, paragraph 64).
70
It is also settled case-law that, in the case of complex assessments, the EU authorities enjoy, in some areas of EU law, a broad discretion, so that review by the EU judicature of those assessments must be confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (see, to that effect, judgments of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 97, and of 28 January 2016, Heli-Flight v EASA, C‑61/15 P, not published, EU:C:2016:59, paragraph 101).
71
The assessment of the scientific excellence of a research proposal by a panel of experts and individual reviewers from the disciplines concerned belongs to the category of complex assessments within the meaning of the case-law referred to in paragraph 70 above.
72
It is therefore for the Court to decide whether objective, relevant and consistent evidence demonstrates that the decision refusing the grant was taken with an aim other than the funding of research proposals of the highest scientific standards, so that a misuse of powers is established, and whether, as the applicant essentially claims, the ERCEA made material errors, manifest errors of assessment or infringed the ERC rules.
73
First, it is apparent from the twelfth paragraph of section 3.6 of the ERC rules that the panel’s decisions are based not only on the opinions of individual reviewers, which are provided before applicants are interviewed, but also on the discussions of the panel.
74
Furthermore, section 1.2.5 of the information for applicants states, first, that the ERC’s panel of experts may take a position that is different from what could be inferred from the comments of each individual reviewer, particularly if discussions reveal a weakness in a proposal that has not been identified by the other individual reviewers, and, secondly, that the panel’s decision is based not only on the individual assessments, but also on an in-depth discussion and depends on the ranking of the other proposals.
75
Thus, if it is for the panel to take account, during its discussions on a research proposal, of all the individual assessments, its final evaluation may not, due to the discretion it enjoys, reflect the position which appears to transpire from the comments of each individual reviewer.
76
Any discrepancy between the majority view of the individual reviewers and the panel’s decision is part of the normal course of the procedure for evaluating the scientific value and relevance of a research proposal.
77
Thus, unless it can be demonstrated that there are factual errors or a manifest error of assessment, the possibility that an argument raised in a single individual assessment might persuade the panel during its discussions falls within the normal course of the scientific evaluation procedure and does not infringe the ERC rules. Moreover, it is expressly contemplated in the information for applicants.
78
Furthermore, the evaluation of proposals is also based on the panel’s discussions and on the comparison of different research proposals.
79
The applicant failed to show that the SH5 panel committed an error as to the correctness of the facts or a manifest error of assessment; he simply challenges the assessment criteria applied by the panel and the assessment of his proposal which he claims, without adducing any evidence in support of that claim, is contradicted by the documentation provided.
80
Therefore, any divergence between the sum of the individual assessments and the final decision of the SH5 panel is not capable of demonstrating that the panel pursued an objective other than scientific excellence, infringed the ERC rules or committed a manifest error of assessment.
81
For the same reasons, the adoption of a decision that concurs with one of the individual assessments, if it were established, would not be such as to constitute, in itself, a misuse of powers, a manifest error of assessment or a breach of the ERC rules.
82
Secondly, the assessment of the documentation provided in the research proposal falls within the discretion of the SH5 panel, in the same way as the assessment of the appropriateness of the questions put by the SH5 panel to the principal investigator during his interview and of the answers to those questions.
83
In the absence of any error as to the correctness of the facts or any manifest error of assessment, the questioning of those aspects from a scientific standpoint cannot therefore be unlawful.
84
Thirdly, without any objective, relevant and consistent evidence to demonstrate that the evaluation criteria applied and the evaluation of the proposal and of the applicant’s interview pursued an aim other than the evaluation of the scientific quality of his proposal, the evidence adduced by the applicant is not such as to establish a misuse of powers, either.
85
The decision refusing the grant is not, therefore, vitiated by a manifest error of assessment, a material error, a breach of the ERC rules or a misuse of powers.
86
In those circumstances, the decision of 26 February 2016, in so far as it found that the ERC rules had been complied with, is not vitiated by the unlawfulness claimed.
87
As regards the criticism of the review committee’s finding that there was no conflict of interest, it must be stated that the applicant has not adduced any evidence showing that there was a conflict of interest with respect to the fifth reviewer.
88
He states that the reasons for the scientific misconduct proceedings brought against him — which resulted in the removal of an individual reviewer on the grounds of conflict of interest — and the comments of the fifth reviewer coincide. He claims that it is possible to infer the existence of a conflict of interest from that purported overlap.
89
However, such an overlap, even if it were established, does not constitute, in itself and in the absence of other evidence, a sufficient reason to find that there was a conflict of interest.
90
Furthermore, without additional evidence, a conflict of interest cannot simply be inferred from the expression of a scientific assessment criticising the applicant’s research proposal.
91
Therefore, the evidence adduced by the applicant does not show that the decision of 26 February 2016, in so far as it found that none of the reviewers was affected by a conflict of interest, is unlawful.
92
As to the remainder, the applicant’s other arguments, particularly those based on the comparison with the approved research proposals, are designed solely to call in question the scientific assessment of his proposal and do not prove that there was an error as to the correctness of the facts or a manifest error of assessment. As such, those arguments must be rejected.
93
The first plea is therefore unfounded.
Second plea in law alleging misuse of powers because of a distortion of the facts
94
The applicant argues that the misuse of powers is proven by the questionable assessment of the fifth reviewer, which influenced the SH5 panel’s final choice.
95
He disputes, in essence, the evaluation of his research proposal and of his personal experience by that reviewer and, in consequence, infers that the SH5 panel’s decision is unlawful in so far as it placed too much weight on the fifth assessment, which he claims is based on incorrect facts.
96
The applicant asserts that an evaluation which is not consistent with the facts is tantamount to a misuse of powers.
97
In the reply, the applicant also argues that the decision refusing the grant is vitiated by a misuse of powers since it was taken with an aim other than the evaluation of the scientific excellence of his research proposal.
98
In support of that argument, he essentially states that the assessment of the fifth reviewer, which allegedly has no scientific basis, shows that the criterion of ethics prevailed over the criterion of excellence and that the scientific misconduct proceedings influenced the evaluation of his research proposal. In that regard, he notes that the complaint of scientific misconduct which was filed against him and subsequently dismissed and the assessment of the fifth reviewer coincide, and also refers to the presence of two members of the ethics committee during his interview with the SH5 panel. In addition, the applicant states that that influence is evidenced by the obstinacy of a member of the SH5 panel and his inquisitorial tone.
99
Lastly, he maintains that the recognition of excellence given to his project in 2014 demonstrates that his improved project in 2015 should not have been rejected.
100
The ERCEA disputes those arguments.
101
In the second plea, the applicant essentially takes issue with the ERCEA for (i) having misused its powers as a result of too much weight being placed on the assessment of the fifth reviewer when the SH5 panel adopted its decision, (ii) the SH5 panel’s manifest error of assessment in so far as that reviewer’s assessment was based on incorrect facts, (iii) the fact that ethical considerations were taken in account instead of only scientific considerations, and (iv) having infringed the ERC rules.
102
He also challenges the fifth reviewer’s assessment of his research proposal and of his ability to monitor technical aspects and argues that it is based on incorrect facts.
103
In the first place, as is apparent from paragraphs 73 to 78 of this judgment, the fact that the fifth reviewer’s assessment was taken into account to the extent that it was is not such as to prove, in itself and without evidence of a misuse of powers, a factual error, a manifest error of assessment or a breach of the ERC rules, that the decision refusing the grant is unlawful.
104
In the second place, the SH5 panel stated in its reasons for the decision refusing the grant that, in the light of the ambitious goal of the research proposal, stemming from the use of the envisaged imaging technology to decipher papyri, concerns about the principal investigator’s control over the technical and financial aspects of the project arose during his interview with the SH5 panel.
105
First, it must be stated that some of the factual considerations to which the fifth reviewer refers and which the applicant contests do not feature in the reasons for the SH5 panel’s decision. That is the case, in particular, as regards the comment that X-ray phase-contrast tomography was already being applied by academics not accredited in the proposal, the comment concerning the impossibility of transporting manuscripts from Italy to France and the assertion that the reconstruction of the planned texts through the use of that technology would take decades.
106
Furthermore, the assessment report of the fifth reviewer is only one element among others taken into consideration by the SH5 panel.
107
Accordingly, the questioning of those factual considerations is not capable of demonstrating that the SH5 panel committed a manifest error of assessment.
108
Secondly, the applicant contends that the fifth reviewer’s claim that he did not have sufficient experience in applying X-ray phase-contrast tomography to Herculaneum papyri to be able to exercise full control over the technological side of the research proposal is wrong, since the publication of a joint scientific paper by the applicant and his team demonstrates such control and that his team has the ability to manage and supervise the technological side of the proposal.
109
However, the evaluation of the applicant’s control over the technological side of the research proposal, the level of control required and the importance of the technological aspects fall within the scope of the SH5 panel’s scientific assessment.
110
The publication of a joint scientific paper and the presence in the research team of specialists in that technology are not such as to demonstrate that the SH5 panel committed a manifest error of assessment.
111
As is apparent from paragraph 104 above, the SH5 panel did not raise concerns about the scientific competence of the members of the research team, but only about the applicant’s ability to control the technological side of the project as principal investigator.
112
Moreover, the applicant admits that he refused to answer a question on the components of the portable laboratory table for X-ray phase-contrast tomography to be used in the project as it fell outside his area of expertise. He also states that the technological details are of secondary importance in the project and are handled, in all cases, by other members of the research group.
113
In addition, none of the items of evidence adduced by the applicant, viewed individually or as a whole, is capable of demonstrating that the SH5 panel committed a manifest error of assessment.
114
In the third place, since expert panels take a separate decision for each call for proposals, the admission of the applicant’s project in 2014 does not guarantee the admission of a similar subsequent project.
115
In those circumstances, the SH5 panel did not commit a manifest error of assessment in finding that there were doubts about the applicant’s control over the technological side of the research proposal.
116
In the fourth place, the applicant claims that the decision refusing the grant was influenced by the parallel scientific misconduct proceedings brought against him and that the criterion of ethics was taken into account by the SH5 panel to the detriment of the criterion of scientific excellence, which he infers from the assessment of the fifth reviewer, the presence of two members of the ethics committee during his interview with the SH5 panel, the allegedly inquisitorial tone of an expert on that panel and what he believes to be persecution.
117
As is apparent from paragraphs 73 to 78 of this judgment, the assessment report of the fifth reviewer is only one element among others taken into consideration by the SH5 panel.
118
Moreover, contrary to the applicant’s submissions, it is not apparent from the statement of reasons for the decision refusing the grant that the SH5 panel unconditionally reproduced the assessment of the fifth reviewer.
119
As regards the claim that the SH5 panel had been influenced by the scientific misconduct proceedings brought against the applicant (which were subsequently dismissed) when it took the decision refusing the grant, the applicant does not adduce any evidence capable of establishing such an influence.
120
First, the influence of the scientific misconduct proceedings brought against the applicant cannot simply be inferred from the alleged similarity between the criticism of the fifth reviewer and the accusations directed against the applicant in those proceedings. Nor can it be inferred from the purportedly inquisitorial tone of that reviewer during the interview with the applicant.
121
The assessment of the fifth reviewer is only one element among others taken into consideration by the SH5 panel and it is not apparent from the statement of reasons for the decision refusing the grant that the SH5 panel based its decision on the criticism concerning the use of other researchers’ work.
122
Secondly, the alleged presence of members of the ethics committee during the applicant’s interview, even if it were established, is not capable of demonstrating, in itself and in the absence of other evidence, that the SH5 panel selected the proposals on the basis of a criterion other than scientific excellence. Moreover, the ERCEA denies that the members of the ethics committee were present during the interview with the applicant. The applicant did not adduce any evidence in that regard.
123
Thirdly, the fact that the chair of the SH5 panel was notified of the existence of the scientific misconduct proceedings against the applicant is also not capable, in the absence of other evidence, of demonstrating that those proceedings influenced the SH5 panel.
124
Consequently, the applicant has not shown that the SH5 panel committed an error as to the correctness of the facts or a manifest error of assessment by adopting the decision refusing the grant.
125
Furthermore, without any objective, relevant and consistent evidence to demonstrate that the evaluation criteria applied and the evaluation of the proposal and of the applicant’s interview pursued an aim other than the evaluation of the scientific quality of his proposal, the evidence adduced by the applicant is not such as to establish a misuse of powers, either.
126
The applicant has therefore not demonstrated that the decision refusing the grant was unlawful.
127
Accordingly, the decision of 26 February 2016, in so far as it found that the ERC rules had been complied with, is not vitiated by the unlawfulness claimed.
128
The second plea is therefore unfounded.
Third plea in law alleging misuse of powers as a result of an infringement of the ERC rules on the evaluation of research proposals
129
First of all, the applicant essentially submits that his research proposal was not evaluated on the basis of the criterion of scientific excellence and disputes the assessment of his proposal’s merits, of the level of control over its technological side required by the SH5 panel and of his curriculum vitae.
130
Next, he takes issue with the SH5 panel for having conducted a superficial examination based on disproved facts.
131
Furthermore, he states that the SH5 panel incorrectly evaluated the ground-breaking nature of his research proposal and that it was not entitled to base its evaluation on the principal investigator’s knowledge of a secondary technical matter.
132
Lastly, the conversion of five very favourable assessments into a single unfavourable judgment defies all logic based on merit and is contradictory.
133
The ERCEA disputes that line of argument.
134
In the third plea, the applicant disputes, in essence, the scientific assessment of his research proposal, of the level of control over its technological side required by the SH5 panel, particularly the taking into account of a technical issue he considers to be incidental, and of his curriculum vitae. He also takes issue with the SH5 panel for having conducted superficial examinations based on disproved facts and asserts that the conversion of five favourable assessments into one unfavourable judgment is contrary to the ERC rules and constitutes a misuse of powers.
135
As is apparent from the consideration of the first two pleas, the applicant’s arguments concerning the scientific assessment of his research proposal and the level of control over its technological side required by the SH5 panel, particularly the taking into account of a technological issue he considers to be incidental, and the arguments concerning an error as to the correctness of the facts and the alleged discrepancy between the outcome of the individual assessments and the decision refusing the grant, are not capable of constituting a factual error, a manifest error of assessment, a misuse of powers or an infringement of the ERC rules.
136
The applicant has therefore not demonstrated that the decision refusing the grant was unlawful.
137
Accordingly, the decision of 26 February 2016, in so far as it found that the ERC rules had been complied with, is not vitiated by the unlawfulness claimed.
138
The third plea is therefore unfounded.
139
It follows from the foregoing that the claims for annulment of the decision refusing the grant and the decision of 26 February 2016, set out in the first and second heads of claim, must be dismissed.
140
The applicant relies on the alleged unlawfulness of the decision refusing the grant and the decision of 26 February 2016 to seek the annulment of prior, connected or subsequent measures linked to the decisions referred to in the action, including the list of approved projects, and to have the Court order the ERCEA to include his research proposal in the projects to which funding is awarded.
141
In the light of the dismissal of the pleas concerning the decision refusing the grant and the decision of 26 February 2016, the application (i) for annulment of prior, connected or subsequent measures linked to the decisions referred to in the action, (ii) for annulment of the list of approved projects, and (iii) seeking to have the Court order the ERCEA to include his research proposal in the projects to which funding is awarded, must also be dismissed.
Requests for the production of documents
142
The applicant asks the Court to order the production of (i) the ranked list of approved projects funded by the SH5 panel, (ii) the final appraisals, individual assessments and scores relating to the projects approved and funded by the SH5 panel, (iii) the scientific misconduct complaint filed against his research project, (iv) the name of the fifth anonymous reviewer of his research project, and (v) the recording of his interview with the SH5 panel on 12 November 2015.
143
It is apparent from the case-law that, to enable the Court to determine whether it is conducive to the proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with minimum information indicating the utility of those documents for the purposes of the proceedings (judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 93, and of 8 October 2008, Sogelma v AER, T‑411/06, EU:T:2008:419, paragraph 152).
144
First of all, the ranked list of approved projects funded by the SH5 panel and the final appraisals, individual assessments and scores relating to those projects would be of utility only if the comparison between the applicant’s research proposal and those projects was capable of demonstrating a manifest error of assessment or a breach of the ERC rules by the SH5 panel.
145
However, that comparison falls within the scope of the scientific assessment of the research proposals.
146
In the absence of any evidence of an error of assessment as regards the applicant’s research proposal, that comparison is not capable of demonstrating, in itself, a manifest error of assessment or a breach of the ERC rules.
147
Therefore, the ranked list of approved projects and the final appraisals, individual assessments and scores relating to those projects are of no utility for the purposes of the proceedings.
148
Next, as is apparent from paragraphs 87 to 90 and 121 to 123 of this judgment, the complaint of scientific misconduct filed against the applicant’s research proposal is of no utility for the purposes of the proceedings in so far as it is not capable, in the absence of other evidence and proof that the SH5 panel was influenced by that complaint when it evaluated his proposal, of demonstrating a misuse of powers, a manifest error of assessment or a breach of the ERC rules.
149
That also applies to the name of the fifth anonymous reviewer.
150
Lastly, since the content of the applicant’s interview is not disputed by the parties and is not such as to demonstrate a misuse of powers, a manifest error of assessment or a breach of the ERC rules, its recording is of no utility for the purposes of the proceedings.
151
There is therefore no reason to order the production of those documents.
152
It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
153
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. As the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the ERCEA, in accordance with the form of order sought by the ERCEA.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Mr Graziano Ranocchia to pay the costs.
Prek
Buttigieg
Berke
Delivered in open court in Luxembourg on 5 February 2018.
[Signatures]
(
*1
)	Language of the case: Italian.