62018TO0762_RES
Case T‑762/18 R
Sofia Athanasiadou and Konstantinos Soulantikas
v
European Commission
Order of the President of the General Court, 10 September 2019
(Interim measures — Financial provisions (budget, financial framework, own resources, combating fraud) — Enforcement — Application for suspension — Admissibility — No urgency)
Interim measures — Suspension of operation of a measure — Admissibility criteria — Application for the suspension of the enforcement of a decision imposing a pecuniary obligation — Failure to bring a main action — Irrelevant
(Arts 256(1), 278 and 299 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Rules of Procedure of the General Court, Art. 156(1))
(see paragraphs 31-36)
Résumé
In the order Athanasiadou and Soulantikas v Commission (T‑762/18 R), delivered on 10 September 2019, the President of the General Court, hearing an application for interim measures, rejected the plea of inadmissibility of the application for interim measures based on the failure to bring a main action.
Ms Athanasiadou and Mr Soulantikas, residing in Greece, formed the partnership ECOSE. That partnership concluded a grant agreement with the Education, Audiovisual and Culture Executive Agency for the implementation of a project entitled ‘Seniors in Action’. Following an audit report recommending the recovery of EUR 59 696.98, the Commission adopted a decision to recover that amount from ECOSE, together with interest due (‘the contested decision’). In accordance with the provisions of the Greek Code of Civil Procedure, the Commission served the contested decision and the order for payment using the services of a bailiff. On 30 October 2018, the applicants filed an opposition before the Court of First Instance (single judge), Athens (Greece). On 31 December 2018, those applicants submitted an application to the General Court, on the basis of Article 299 TFEU, (
1
) for suspension of the enforcement of the decision. In its observations, the Commission argued that the application for interim measures was inadmissible on the ground that no main action for annulment of the contested decision had been brought, in breach of Articles 161 and 156 (
2
) of the Rules of Procedure of the General Court.
First, the President of the General Court recalled his exclusive jurisdiction to order the suspension of the forced execution of the contested decision, the national courts concerned having jurisdiction only over complaints that enforcement is being carried out in an irregular manner. (
3
)
Second, he noted that Article 156 of the Rules of Procedure lays down procedural rules which differ according to the legal basis of the application for interim measures. Thus, the requirement laid down in Article 156(1) of those rules, in accordance with which an application to suspend the operation of a measure adopted by an institution is to be admissible only where the applicant has challenged that measure in a main action brought prior to or concurrently with that application, is expressly limited to applications made pursuant to Article 278 TFEU and Article 157 TEAEC. Consequently that requirement does not necessarily apply in this case.
Third, the President of the General Court found that the requirement to satisfy such an obligation would deprive the applicants of the right to an effective remedy. In the circumstances of the present case, in order to allow the national courts the time necessary to exercise their jurisdiction over complaints that enforcement is being carried out in an irregular manner, under Article 299(4) TFEU, it must be possible to request that the EU Courts, which alone have the jurisdiction to do so, order the suspension of enforcement, where appropriate.
In that situation, the President of the General Court pointed out that, consequently, the pleas in law raised in the context of proving the existence of a prima facie case must fall within the jurisdiction of the national courts and appear to be well founded. Pleas concerning the legality of the decision are ineffective unless they are raised in the context of an application under Article 278 TFEU alongside a main action brought under Article 263 TFEU, in so far as the merits of an enforceable decision can be disputed only before the court hearing the proceedings for annulment, on the basis of Article 263 TFEU.
In that regard, without there being any need at this stage to rule on whether the pleas appear to be well founded, the President of the General Court noted that, in this case, some of the grounds put forward by the applicants to support the claim that the condition relating to the existence of a prima facie case has been satisfied concern, specifically, the enforcement procedure in Greece and the regularity of enforcement measures, and therefore, do fall within the jurisdiction of the national court. Thus, the request for interim measures is indeed intended to enable the national court to exercise its powers under Article 299 TFEU.
Consequently, the President of the General Court concluded that the plea of inadmissibility relating to the absence of a main action must be dismissed. Lastly, the application for interim measures was dismissed as lacking urgency.
(
1
)	Under Article 299 TFEU, acts of the Commission which impose a pecuniary obligation on persons other than States, shall be enforceable. Enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out. The order for its enforcement shall be appended to the decision, without other formality than verification of the authenticity of the decision, by the national authority which the government of each Member State shall designate for this purpose and shall make known to the Commission and to the Court of Justice of the European Union. When these formalities have been completed on application by the party concerned, the latter may proceed to enforcement in accordance with the national law, by bringing the matter directly before the competent authority. Enforcement may be suspended only by a decision of the Court of Justice of the European Union. However, the courts of the country concerned shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner.
(
2
)	Article 156(1) of the Rules of Procedure of the General Court provides that an application to suspend the operation of any measure adopted by an institution, made pursuant to Article 278 TFEU or Article 157 TEAEC, is to be admissible only if the applicant has challenged that measure in an action before the General Court.
(
3
)	In accordance with Article 299 TFEU, read in conjunction with Article 256(1) TFEU and Articles 39(1) and 53(1) of the Statute of the Court of Justice of the European Union