Provisional text
JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
4 September 2024 (*)
( EU Financial Regulations – Implementation of the EU budget under indirect management by an international organisation – Decision refusing to recognise a legal person as an international organisation – Action for annulment – Lawfulness of the authority to act granted to the applicant’s lawyers – Admissibility – Decision adopted in compliance with a judgment of the Court of Justice – Article 266 TFEU – Res judicata – Principle of good administration – Legal certainty – Regulation (EU, Euratom) No 966/2012 – Article 58 – Delegated Regulation (EU) No 1268/2012 – Article 43 – Regulation (EU, Euratom) 2018/1046 – Article 156 – Concepts of ‘international organisation’ and ‘international agreement’ – Errors in law – Manifest error of assessment – Non-contractual liability )
In Case T‑509/21,
International Management Group (IMG), established in Brussels (Belgium), represented by L. Levi and J.‑Y. de Cara, lawyers,
applicant,
v
European Commission, represented by J. Baquero Cruz, J.‑F. Brakeland, S. Delaude and L. Puccio, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber, Extended Composition),
composed of L. Truchot (Rapporteur), President, H. Kanninen, R. Frendo, M. Sampol Pucurull and T. Perišin, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure, in particular the decision of 11 January 2022 to stay the proceedings pending the final decision of the Court of Justice in the case which gave rise to the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722),
further to the hearing on 22 November 2023,
gives the following
Judgment
1        By its action, the applicant, International Management Group (IMG), seeks, first, on the basis of Article 263 TFEU, annulment of the decision of 8 June 2021 by which the European Commission refused to accord it, with retroactive effect from 16 December 2014, the status of an international organisation provided for by the EU Financial Regulations for the implementation of EU funds using the indirect management method (‘the contested decision’) and, second, on the basis of Article 268 TFEU, compensation for the material and non-material damage which it claims to have sustained.
I.      Background to the dispute
A.      Administrative background
2        The applicant, initially named International Management Group – Infrastructure for Bosnia and Herzegovina (IMG-IBH), the headquarters of which are now in Belgrade (Serbia), was created on 25 November 1994 to provide the States and international organisations participating in the reconstruction of Bosnia and Herzegovina with an entity specifically created for that purpose. Since then, it has gradually extended its activities into the fields of reconstruction and development.
3        On 7 November 2013, the Commission adopted Implementing Decision C(2013) 7682 final on the Annual Action Programme 2013 in favour of Myanmar/Burma to be financed from the general budget of the European Union, on the basis of Article 84 of 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). That decision provided, inter alia, for a programme for trade development the cost of which, estimated at EUR 10 million, was to be financed by the European Union and implemented by joint management with the applicant.
4        On 17 February 2014, the European Anti-Fraud Office (OLAF) informed the Commission that it had opened an investigation into the applicant’s status. On 15 December 2014, the Commission received the report drawn up by OLAF following its investigation (‘the OLAF report’), together with a number of recommendations. In that report, OLAF stated, in essence, that the applicant was not an international organisation within the meaning of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) and Regulation No 966/2012. In addition, OLAF recommended that the Commission impose penalties on the applicant and recover the sums paid to the applicant in that capacity.
5        On 16 December 2014, the Commission decided to entrust the implementation, by indirect management, of the trade development programme provided for in Implementing Decision C(2013) 7682 final, referred to in paragraph 3 above, to an organisation other than the applicant (‘the decision of 16 December 2014’).
6        Lastly, on 8 May 2015, the Commission sent a letter to the applicant informing it of how it intended to follow up on the OLAF report, in which it stated that, although it would not apply the majority of the recommendations made by OLAF, it had decided, inter alia, that, until there was absolute certainty regarding its status as an international organisation, its department would not enter into any new delegation agreement with it using the indirect management method provided for by Regulation No 966/2012 (‘the decision of 8 May 2015’).
B.      Legal background
7        By a first application lodged at the Registry of the General Court on 21 January 2015 and registered under number T‑29/15, and then by a second application lodged on 14 July 2015 and registered under number T‑381/15, the applicant brought actions seeking, first, annulment of the decision of 16 December 2014 and, secondly, annulment of the decision of 8 May 2015 and for compensation for the damage caused by that decision.
8        By judgments of 2 February 2017, International Management Group v Commission (T‑29/15, not published, EU:T:2017:56), and of 2 February 2017, IMG v Commission (T‑381/15, not published, EU:T:2017:57), the General Court dismissed the applicant’s actions against the decisions of 16 December 2014 and 8 May 2015.
9        By two appeals lodged on 11 April 2017 and registered under numbers C‑183/17 P and C‑184/17 P, the applicant sought to have the two judgments referred to in paragraph 8 above set aside.
10      By judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice, first, set aside the two judgments referred to in paragraph 8 above, second, annulled the decisions of 16 December 2014 and 8 May 2015, and third, referred Case T‑381/15 back to the General Court for a ruling on the claim for damages submitted by the applicant in respect of the harm allegedly caused by the decision of 8 May 2015.
11      By application lodged at the Registry of the Court of Justice on 10 January 2020, the applicant asked the Court to interpret points 1 to 3 of the operative part of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78). By order of 9 June 2020, International Management Group v Commission (C‑183/17 P-INT, EU:C:2020:447), the Court dismissed that application for interpretation as being manifestly inadmissible.
C.      Administrative actions following the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P)
12      By letter of 6 May 2019, the Commission requested that the applicant, in the context of compliance with the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), produce certain documents in order for it to demonstrate that it did in fact fulfil the requirements to be able to work with the Commission using the indirect management method.
13      By letter of 25 June 2019, the applicant, in essence, asked the Commission to cease challenging its status as an international organisation.
14      By letter of 18 July 2019 (‘the letter of 18 July 2019’), the Commission submitted that the enforcement of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), did not require ‘automatic recognition of [the applicant] as an international organisation, but rather the reassessment of its legal status in the light of available information and the applicable financial rules’. Accordingly, the Commission repeated its request to the applicant to produce the documents referred to in the letter of 6 May 2019, to which reference is made in paragraph 12 above, and stated that, in the event of a refusal on the applicant’s part, it would turn directly to the States which the applicant considered to be its members.
15      On 26 November 2019, the Commission asked Belgium, Denmark, Germany, Greece, Spain, France, Italy, the Netherlands, Austria, Portugal, Finland, Sweden, the United Kingdom, Canada, Norway, Russia, Switzerland and Türkiye whether they considered the applicant to be an international organisation, whether they were members of that organisation, and whether they had signed an international or intergovernmental agreement establishing the applicant as an international organisation. If so, the Commission asked those States to send it a certified copy of that agreement and proof that its signatories had full powers to sign it, or a copy of the instrument of ratification of that agreement.
16      On 27 January, and then on 11 March 2020, the Commission repeated its request for information of 26 November 2019, referred to in paragraph 15 above, from Belgium, Denmark, Germany, Greece, Spain, France, Austria, Sweden, the United Kingdom, Canada and Türkiye.
17      On 25 May 2020, the Commission reiterated once again the request for information of 26 November 2019, referred to in paragraph 15 above, from Belgium, Denmark, Germany, Greece, Spain, France, Sweden, Canada and Türkiye, and then, on 14 October 2020, from Germany and Türkiye.
18      By letter of 19 February 2021, the Commission informed the applicant that it intended to adopt a decision refusing to accord it the status of an international organisation and invited it to submit observations.
19      On 5 and 30 March 2021, the applicant submitted written observations in response to the Commission’s letter of 19 February 2021 referred to in paragraph 18 above.
20      On 8 June 2021, the Commission adopted the contested decision.
D.      Judicial actions following the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P)
21      By application lodged at the Registry of the General Court on 26 September 2019 and registered under number T‑645/19, the applicant brought an action seeking, first, annulment of the letter of 18 July 2019 and, second, compensation for the material and non-material harm allegedly caused by that letter.
22      By order of 9 September 2020, IMG v Commission (T‑645/19, not published, EU:T:2020:388), the General Court dismissed that action as inadmissible.
23      In addition, by judgment of 9 September 2020, IMG v Commission (T‑381/15 RENV EU:T:2020:406), the General Court rejected the applicant’s claim for compensation for the harm allegedly caused by the decision of 8 May 2015.
24      On 19 November 2020, the applicant brought two appeals, registered under numbers C‑619/20 P and C‑620/20 P, seeking to have the order and the judgment referred to, respectively, in paragraph 22 and in paragraph 23 above set aside.
II.    Events subsequent to the bringing of the action
25      By judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722), the Court of Justice, first, dismissed the appeal in Case C‑619/20 P brought against the order referred to in paragraph 22 above, second, set aside the judgment referred to in paragraph 23 above in part and, third, referred Case T‑381/15 RENV back to the General Court for a ruling on the applicant’s claim for damages for the material harm allegedly caused by the decision of 8 May 2015.
III. Forms of order sought
26      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay it the sum of EUR 23 671 903 as compensation for material and non-material damage;
–        order the Commission to pay the costs.
27      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
IV.    Law
A.      Admissibility
28      It is for the Court to examine the question of the validity of the authority to act granted by the applicant to its lawyers before assessing the admissibility of Annexes A.24 to the application and C.1 to the reply, which the Commission maintained were inadmissible.
1.      The validity of the authority to act granted by the applicant to its lawyers
29      At the hearing, in response to a question from the Court on the competent body of the applicant to bring legal proceedings, the Commission argued that the authority to act of 12 August 2021 granted by the applicant to its lawyers, contained in Annex A.3 to the application, did not refer to a decision of its standing committee, and therefore it was possible to doubt the existence of that decision.
30      The applicant disputes the merits of the Commission’s allegations.
31      In that regard, it must be recalled that questions concerning the admissibility of an action are a matter of public policy, and therefore the EU Courts may consider them at any time, even on their own initiative (see judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 42 and the case-law cited).
32      In particular, under the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, which applies to the General Court pursuant to the first paragraph of Article 53 of that statute and Article 51(1) of the Rules of Procedure of the General Court, in order to be able to bring proceedings before the EU Courts, legal persons other than the Member States, the EU institutions, States which are parties to the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) and the EFTA Surveillance Authority covered by that agreement, must be represented by a lawyer authorised to practice before a court of a Member State or of another State which is a party to that agreement (see, to that effect, judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 91).
33      Accordingly, where the lawfulness of an authority granted by a party to its lawyer is challenged, that party must demonstrate that that authority is lawful, which it is for the Court to verify (see, to that effect, judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 93 and the case-law cited).
34      However, while the EU Courts must require a demonstration that the authority to act granted to a party’s lawyer is lawful where that mandate is challenged by an opposing party, such a requirement is only relevant in so far as that challenge is based on sufficiently concrete and precise indicia (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 97).
35      In the present case, in the first place, Article 18(d) of the applicant’s articles of agreement
(‘statute’) states, without further clarification, that it possesses legal capacity, as may be necessary for the exercise of its functions and the fulfilment of its purposes, and in particular the capacity to institute legal proceedings.
36      In the second place, by merely pointing out at the hearing that the authority to act granted by the applicant to its lawyers did not refer to a decision of its standing committee, the Commission did not base its challenge to the legality of that mandate on sufficiently concrete and precise indicia.
37      The plea of inadmissibility alleging that the authority to act granted by the applicant to its lawyers is unlawful must therefore be dismissed.
2.      Admissibility of Annex A.24 to the application
38      At the hearing, the Commission raised the inadmissibility of Annex A.24 to the application in that it included the opinion of its Legal Service of 16 January 2015, the disclosure of which it had not authorised.
39      The applicant disputes the merits of that plea of inadmissibility.
40      In that regard, it must be recalled that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it results that, where evidence has been obtained lawfully, its admissibility cannot be contested before the General Court (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 65 and the case-law cited).
41      According to settled case-law, it would be contrary to the public interest, which requires that the institutions should be able to benefit from the advice of their legal services, given in full independence, to allow such internal documents to be produced in proceedings before an EU Court unless their production has been authorised by the institution concerned or ordered by that court (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 136 and the case-law cited).
42      By producing such a legal opinion without authorisation, the applicant is confronting the institution concerned, in proceedings concerning the lawfulness of a contested measure, with an opinion issued by its own legal service during the drafting of that measure. In principle, to allow the applicant to put before the Court a legal opinion from an institution the disclosure of which has not been authorised by that institution would be contrary to the requirements of a fair hearing and would be tantamount to circumventing the procedure for requesting access to such a document introduced by Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) (see, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 54 and the case-law cited).
43      It is true that account should be taken of the principle of openness, laid down in the second paragraph of Article 1 and Article 10(3) TEU and Article 15(1) and Article 298(1) TFEU, which guarantees, inter alia, that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Thus, by allowing divergences between various points of view to be openly debated, it contributes to increasing those citizens’ confidence in those institutions (see judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 55 and the case-law cited).
44      However, it is only exceptionally that the principle of openness will be capable of justifying, in judicial proceedings, the disclosure of a document of an institution that has not been released to the public and which contains a legal opinion. For that reason, the retention, in the file of a particular case, of a document containing a legal opinion from an institution is not justified by any overriding public interest where, first, that legal opinion does not relate to a legislative procedure in respect of which increased openness is required and, secondly, the interest in the document’s retention consists, for the applicant concerned, in the ability to rely on that legal opinion in the context of a dispute. In such a case, the production of such a legal opinion appears to be guided by the applicant’s own interest in supporting its arguments and not by any overriding public interest, such as the interest in making public the procedure which resulted in the contested measure (see judgment of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 56 and the case-law cited).
45      In the first place, in the present case, it must be held that the opinion of the Commission’s Legal Service of 16 January 2015 referred to in paragraph 38 above, the disclosure of which was not authorised by that institution, does not relate to a legislative procedure in respect of which increased openness is required.
46      In the second place, in response to the plea of inadmissibility raised by the Commission, the applicant has not indicated any interest other than that of being able to rely on that legal opinion in the context of the present dispute, and therefore its production does not appear to be guided by an overriding public interest but by its own interests.
47      In those circumstances, the plea of inadmissibility alleging that Annex A.24 to the application is inadmissible must be upheld and that annex must be declared inadmissible.
3.      Admissibility of Annex C.1 to the reply
48      The Commission submits that the applicant has not justified the delay in producing the attestation of the Chairman of the standing committee of 13 October 2022, which appears in Annex C.1 to the reply (‘the attestation of 13 October 2022’), in breach of the requirements laid down in Article 85(2) of the Rules of Procedure.
49      In that regard, it must be recalled that, in accordance with Article 85(2) of the Rules of Procedure, in reply or rejoinder a main party may produce or offer further evidence in support of his arguments, provided that the delay in the submission of such evidence is justified.
50      According to the case-law, although, in accordance with the time-bar rule laid down in Article 85 of the Rules of Procedure, the parties must state the reasons for the delay in submitting or offering new evidence, it is for the General Court to review the merits of the reasons for the delay in submitting or offering that evidence and to reject it if its belated production is not justified to the requisite legal standard or substantiated. The belated submission or offer of evidence by a party may be justified, in particular, by the fact that that party did not previously have the evidence in question at its disposal, or if the belated production of evidence by the opposing party justifies the file being supplemented, in such a way as to ensure observance of the inter partes principle (see, to that effect, judgment of 16 September 2020, BP v FRA, C‑669/19 P, not published, EU:C:2020:713, paragraph 41 and the case-law cited).
51      In the present case, it must be held that, in paragraph 51 of the reply, the applicant did not justify the belated production of the attestation of 13 October 2022, which was drawn up by the Chairman of its standing committee and was attached to those pleadings ‘if necessary’.
52      It is true that the attestation of 13 October 2022 was drawn up after its signatory, a former member of the French diplomatic corps who states that she had participated in the approval, in 1995, of the applicant’s statute, was elected to the chairmanship of its standing committee on 29 June 2022, therefore, after the date on which the application was lodged, namely 18 August 2021.
53      However, in the fifth indent of paragraph 25 of the application, the applicant states that it has submitted to OLAF, as well as to the Court, a statement and an email from that diplomat dated 20 May and 19 September 2014 respectively, attesting that she had indeed participated in the signature of its statute at the time of its creation.
54      Moreover, in the first indent of paragraph 104 of the application, the applicant submits that earlier statements made by that same diplomat confirmed that all the States which had participated in the meeting of 25 November 1994 had signed the act establishing it, and therefore they should all be regarded as its founding members.
55      Thus, the attestation of 13 October 2022 was drawn up by its signatory not on account of new information related to her new duties as Chairman of the applicant’s standing committee, but in view of her participation in the foundation of that committee in 1994 and 1995, and therefore it is not new information of which the applicant was not previously aware.
56      Nor, moreover, does the attestation of 13 October 2022 constitute evidence to the contrary provided following new evidence which was annexed to the defence by the Commission.
57      Consequently, Annex C.1 must be dismissed as being out of time and therefore inadmissible.
B.      The claim for annulment
58      In support of its claim for annulment, the applicant relies on four pleas in law, alleging, first, several errors in law, in particular infringement of Article 266 TFEU, the force of res judicata and breach of the principle of non-retroactivity, second, infringement of the right to good administration, in particular the obligation to state reasons and the duty of diligence, third, breach of the principle of legal certainty and, fourth, manifest errors of assessment and other errors in law.
59      In particular, the second plea consists, in essence, of three parts, alleging, first, infringement of the obligation to state reasons, second, breach of the duty of diligence and, third, breach of the obligation of impartiality.
60      The Commission disputes the merits of those pleas.
61      The Court will examine the first part of the second plea in law, alleging breach of the obligation to state reasons, then the first, third and fourth pleas in law, before examining the second and third parts of the second plea, alleging breach, respectively, of the duty of diligence and the obligation of impartiality.
1.      The first part of the second plea in law, alleging breach of the obligation to state reasons
62      The applicant submits that the contested decision does not contain a sufficient statement of reasons in that the Commission did not mention that it had refused any meeting, discussion or exchange with it, despite its repeated requests. It also complains that the Commission did not explain why the documents at its disposal did not allow it to conclude, with the requisite degree of legal certainty, that the States which were allegedly members of it had validly consented to establishing it as an international organisation and did not adduce evidence to justify the re-assessment of its status, in the absence of any change in its factual and legal situation.
63      In that regard, it follows from Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) that the right to good administration includes, inter alia, the obligation of the administration to give reasons for its decisions.
64      According to settled case-law, the statement of reasons required under Article 296 TFEU and Article 41(2)(c) of the Charter for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU and Article 41(2)(c) of the Charter must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgments of 4 June 2020, Hungary v Commission, C‑456/18 P, EU:C:2020:421, paragraph 57 and the case-law cited, and of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 53 and the case-law cited).
65      Moreover, the absence of a statement of reasons may be found even where the decision in question contains certain elements of reasoning. Thus, a contradictory or unintelligible statement of reasons amounts to a failure to state reasons. The same applies where the statement of reasons in the decision in question is so incomplete that it does not in any way enable the addressee, in the context of its adoption, to understand its author’s reasoning (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited).
66      In the present case, it is apparent from the contested decision that it consists of a letter, dated 8 June 2021, sent by the Commission to the applicant, and an annex of approximately 20 pages entitled ‘Final assessment of the legal status of [IMG] for the purpose of its eligibility for indirect management’ (‘the final assessment’), that annex itself being accompanied by two annexes.
67      In the first place, in the letter of 8 June 2021, the Commission informed the applicant that, at the end of the final assessment, it reached the conclusion that the applicant was not eligible for the implementation of the EU budget under indirect management as an international organisation, in accordance with the financial rules applicable to the EU budget and the European Development Funds.
68      Moreover, the Commission stated that the final assessment and its conclusion constituted the implementation of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), and that the contested decision applied from 16 December 2014, the date on which one of the decisions annulled by that judgment of the Court of Justice took effect.
69      In the second place, it is clear from the final assessment that it consists of four parts, concerning, first, the opportunity given by the Commission to the applicant to present its observations on the intended decision, second, the assessment of the applicant’s observations, third, the applicant’s comments on the responses from the States questioned by the Commission and, fourth, the conclusion.
70      First, in the first subsection of the first part of the final assessment, the Commission stated that, by the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice had annulled the decisions of 16 December 2014 and 8 May 2015 primarily on the ground that the Commission’s doubts as to the applicant’s status as an international organisation arose from the positions taken by a minority of its members, namely 5 out of 16 States, and that a full re-assessment of its legal status was therefore necessary in order to implement that judgment, in order to determine whether it was eligible, as an international organisation, to implement the EU budget under indirect management.
71      Second, in the third and fourth subsections of the first part of the final assessment, the Commission recalled the successive provisions of EU financial legislation which lay down the eligibility requirements for the implementation of EU funds under indirect management, by international organisations, since 16 December 2014.
72      In that regard, the Commission considered that the definition of ‘international organisation’, referred to in the EU Financial Regulations, had to be interpreted in accordance with Article 2(1)(i) of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331; ‘the Vienna Convention’) and in accordance with Article 2(1)(a) of the Draft Articles on the responsibility of international organisations adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10) (Yearbook of the International Law Commission, 2011, Vol. II, Part Two; ‘the Draft Articles’).
73      The Commission inferred from this that, in order to qualify for the indirect management provided for by EU legislation, an international organisation must have been set up by an intergovernmental or international agreement, as defined by Article 2(1)(a), Article 7(1) and Articles 8 and 11 of the Vienna Convention.
74      Thus, the Commission stated that, to be eligible for indirect management as an international organisation, the entity concerned had to have been established as such an organisation by a treaty governed by international law and concluded by at least two States, whose consent had to be expressed by representatives with full powers, or in accordance with the formal requirements laid down in Article 11 of the Vienna Convention.
75      Third, in the fifth subsection of the first part of the final assessment, the Commission referred to paragraphs 94 and 95 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), and concluded from it that, if the States which are, allegedly, members of an organisation declared that they had not given their valid consent to accede to the treaty or the agreement forming that organisation, or declared that they were not or were no longer members thereof, the Commission would not have a legal basis enabling it to consider, of its own motion, that that entity constituted an international organisation within the meaning of the EU Financial Regulations.
76      In particular, the Commission considered that, if only one State fully acknowledged its membership of an international organisation or acknowledged that it had consented to be bound by the treaty establishing that organisation, such circumstances would be insufficient to enable that entity to be regarded as an international organisation pursuant to the EU financial rules, since the existence of such an organisation and of an international agreement requires the participation of at least two States.
77      Fourth, in the sixth subsection of the first part of the final assessment, concerning the documents which the Commission received and considered for the re-assessment of the applicant’s legal status, the Commission recalled that the applicant had not provided any of the documents requested by it in its letters of 6 May and 18 July 2019 referred to, respectively, in paragraphs 12 and 14 above, and that, since the documents at its disposal did not allow it to conclude, with the requisite degree of legal certainty, that the alleged members of the applicant organisation had validly consented to establishing it as an international organisation and were members of it, it had questioned, in November 2019, the authorities of the States mentioned on the applicant’s website and presented as being its members.
78      Fifth, in the seventh subsection of the first part of the final assessment (‘subsection
A.7’), concerning the preliminary assessment of the applicant’s eligibility for indirect management as an international organisation, the Commission examined, first, whether it had itself actually participated in the applicant’s creation and, second, the replies of the States it had questioned in the circumstances referred to in paragraphs 15 to 17 above.
79      As regards, first, the question of its participation in the creation of the applicant, the Commission found that neither the European Community nor the European Union following it had concluded an international agreement in accordance with Article 228(2) of the EC Treaty with a view to establishing the applicant as an international organisation and that the European Union could not therefore be regarded as a member of that organisation. The Commission added that, even if it had concluded an agreement with a view to establishing the applicant as an international organisation, such an agreement could be regarded as an international agreement only if at least two States had acceded to it.
80      Second, as regards the replies of the States alleged to be members of the applicant, the Commission found that none of those States acknowledged that they had signed an international or intergovernmental agreement establishing the applicant as an international public-sector organisation, provided signatories with powers to sign, on their behalf, an international or intergovernmental agreement to that effect, applied internal procedures for the ratification of an international or intergovernmental agreement to that effect, or established the applicant as an international public-sector organisation.
81      Moreover, the Commission stated that only Austria had acknowledged that it was a member of the applicant and that, according to the Austrian authorities, the applicant was, at the time of its creation, a temporary and independent international body vested with limited legal capacity and not an international organisation.
82      Furthermore, the Commission considered that, although some international organisations had not been formally created by a treaty but had acquired that status in practice, those organisations were clearly and widely recognised as international organisations by their member States and by various international bodies, which was not the case with the applicant.
83      In addition, while referring specifically to the replies of Belgium, Italy, Austria and Finland, the Commission took the view that the statements of some of the States consulted, which confirmed that they had signed the document of 25 November 1994 concerning the establishment of IMG-IBH (‘the resolution of 25 November 1994’), had attended the meeting on the same day at which that document was adopted and that they had been members of the applicant’s steering committee, were not such as to establish that the applicant was an international organisation established by an international agreement.
84      Sixth, in the second and third parts of the final assessment, the Commission examined the objections raised by the applicant in its letter of 30 March 2021 and took the view that none of those objections was capable of calling into question the preliminary conclusion that it did not qualify as an international organisation and, consequently, it was not eligible for the implementation of EU funds under indirect management as an international organisation from 16 December 2014.
85      In the light of all those factors, it must be held that the contested decision sufficiently set out the legal and factual considerations on which it was based and which were such as to enable the applicant to assess its lawfulness and to enable the Court to exercise its power of review.
86      In the third place, the applicant’s claims that some of the reasons for the contested decision are insufficiently precise are not such as to call into question the conclusion set out in paragraph 85 above.
87      First, as regards the absence of any indication in the contested decision that the Commission refused any meeting, discussion or exchange with the applicant, despite the latter’s repeated requests, such an approach, even if proved, is irrelevant for the purpose of determining whether that decision is sufficiently reasoned.
88      The reference to possible exchanges between the Commission and the applicant prior to the adoption of the contested decision concerns the procedure for adopting that decision and not its merits. Thus, since such an indication is irrelevant to the reasons of fact and law which formed the basis of the conclusion reached by the Commission in the contested decision, the applicant cannot validly criticise the Commission for failing to state reasons on account of its silence on that point.
89      Second, as regards the applicant’s claims that the Commission failed to explain why the documents in its possession were insufficient to determine whether the applicant held the status of an international organisation, it is clear from the contested decision, and in particular from the sixth subsection of the first part of the final assessment, that the Commission considered that those documents, which it listed in footnote 23 of that assessment did not, from its point of view, provide it with the requisite degree of legal certainty, which is an admittedly brief but sufficient reason.
90      Third, as regards the applicant’s claims that the Commission did not put forward any evidence to justify the re-assessment of the appliant’s legal status in the absence of any change in its factual and legal situation, it is clear from the contested decision, in particular the first subsection of the first part of the final assessment, that the Commission considered that such a re-assessment was necessary in order to implement the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78).
91      Consequently, the first part of the second plea in law, alleging an inadequate statement of reasons for the contested decision, must be dismissed as unfounded.
2.      The first plea in law, alleging several errors in law, in particular infringement of Article 266 TFEU, of the force of res judicata and breach of the principle of non-retroactivity
92      The first plea in law consists, in essence, of three parts, alleging, first, infringement of Article 266 TFEU and of the force of res judicata attaching to the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), second, infringement of the EU Financial Regulations and the Commission Guidance of 7 January 2015 on the assessment of the status of international organisations and the possibility to assimilate non-profit organisations to international organisations (‘the guidance’) and of various principles, in particular the principle of non-retroactivity; and, third, breach of the principle of equal treatment.
(a)    The first part, alleging infringement of Article 266 TFEU and the force of res judicata attaching to the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P)
93      The first part of the first plea in law consists of two complaints, alleging, first, infringement of Article 266 TFEU and, second, breach of the principle of res judicata.
(1)    The first complaint, alleging infringement of Article 266 TFEU
94      The applicant submits that Article 266 TFEU requires the institution whose act has been declared void to adopt a new act with retroactive effect only if that institution is in a situation where its powers are circumscribed, which the Court of Justice confirmed in paragraph 113 of the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722). Thus, following the annulment of the decisions resulting from the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Commission could not, in the applicant’s view, lawfully re-examine a posteriori the categorisation as an international organisation which it had been accorded.
95      According to settled case-law, it follows from Article 266 TFEU that the institution whose act has been declared void is required to take the necessary measures to comply with the judgment annulling that act and, in order to comply with that judgment and to comply with it fully, to have regard not only to its operative part but also to the grounds which constitute the essential basis for it, in so far as they are necessary to determine the exact meaning of what is stated in that operative part (see judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 101 and the case-law cited).
96      However, since Article 266 TFEU does not specify the nature of the measures to be taken by the author of the annulled act in order to comply with the obligation referred to in paragraph 95 above, it is for the author to identify those measures, whilst having, in the choice of those measures, a wide discretion, provided that it complies with the operative part of the judgment which annulled that act and with the grounds that constitute its essential basis (see judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 102 and the case-law cited).
97      In particular, it follows from the case-law that a measure taken to comply with a judgment annulling an act may, in exceptional circumstances, be retroactive where the purpose to be achieved so demands, that is to say if the retroactive decision is intended to satisfy at least an aim which is in the public interest and if the legitimate expectations of those concerned are duly respected (see, to that effect, judgment of 28 January 2016, Éditions Odile Jacob v Commission, C‑514/14 P, not published, EU:C:2016:55, paragraph 50 and the case-law cited).
98      Thus, a retroactive decision taken in compliance with a judgment annulling a measure and whose purpose is to remedy the unlawfulness found in that judgment is intended to satisfy an aim which is in the public interest, namely the respect by the administration of legality and the force of res judicata (see, to that effect, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 106).
99      It follows from the case-law that the annulment of a measure by the Courts of the European Union has the effect of retroactively eliminating that measure from the legal system, and where the measure annulled has already been carried out, the abolition of its effects means that the applicant must be restored to the legal position he was in before it was adopted (see judgment of 21 September 2022, Casanova v EIB, T‑266/21, not published, EU:T:2022:566, paragraph 85 and the case-law cited).
100    Moreover, it has also been held that, if a judgment has the effect of annulling an act retroactively, it does not oblige the administration to adopt a new decision the substance of which is different from that relating to the annulled decision, provided that that new decision and the procedure by which it was adopted are not affected by the same defects as those which led to the annulment of the first decision or by new defects (see, to that effect, judgment of 8 June 2022, Darment v Commission, T‑92/21, not published, EU:T:2022:341, paragraph 49).
101    In the present case, it follows from paragraphs 57 to 59, 61 and 88 to 90 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), that the Commission is under an obligation to ensure that the entities to which it has entrusted or intends to entrust budget implementation tasks, pursuant to the EU financial legislation relating to the indirect management of the EU budget by international organisations, have that status within the meaning of that legislation. Moreover, in the event of doubts in that regard, the Commission is under an obligation to dispel those doubts and to gather all of the information necessary to justify its legal decision as well as in fact, having regard to the legal consequences of that decision for the entity concerned (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 111).
102    Furthermore, it is clear from paragraphs 92 to 97 and 104 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the content of which was set out in paragraphs 22 and 23 of the order of 9 June 2020, International Management Group v Commission (C‑183/17 P-INT, EU:C:2020:447), that the decisions of 16 December 2014 and 8 May 2015 were not justified in law or in fact (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 112).
103    In the light of those assessments and findings, which constitute the basis of the operative part of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Commission was not required to recognise, with retroactive effect, the status of international organisation which the applicant claims, but could meet its obligation to comply with that judgment by adopting procedural measures designed to enable it to remedy the irregularity found by the Court and, potentially, to adopt a new act, intended to replace the decisions annulled by the Court, after having obtained the information which it considered necessary to substantiate that new act in law and in fact (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 113).
104    Thus, it follows from the grounds of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the meaning and scope of which the Court of Justice recalled in the order of 9 June 2020, International Management Group v Commission (C‑183/17 P-INT, EU:C:2020:447), that the Commission was not precluded, following that judgment, from subsequently conducting a new assessment of the applicant’s status as an international organisation, taking into account all the relevant elements of fact and of law (see, to that effect, judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 142).
105    Consequently, by re-assessing retroactively the applicant’s legal status following the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Commission did not infringe Article 266 TFEU and therefore the first complaint must be dismissed as unfounded.
(2)    The second complaint, alleging breach of the principle of res judicata
106    The applicant considers that the force of res judicata attaching to paragraphs 94 and 104 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), precluded the re-assessment of its status with retrospective effect.
107    In that regard, according to settled case-law, the concept of res judicata does not attach only to the operative part of the judgment in question, but also attaches to the ratio decidendi of that judgment, which provides the necessary underpinning for the operative part and is inseparable from it (see judgment of 17 September 2020, Alfamicro v Commission, C‑623/19 P, not published, EU:C:2020:734, paragraph 37 and the case-law cited).
108    Moreover, the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (see judgment of 17 September 2020, Alfamicro v Commission, C‑623/19 P, not published, EU:C:2020:734, paragraph 38 and the case-law cited).
109    As stated in paragraph 102 above, it follows from paragraphs 92 to 97 and 104 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), that the decisions of 16 December 2014 and 8 May 2015 were not justified in law or in fact, with the result that they were annulled by the Court of Justice.
110    In particular, in paragraphs 92 to 97 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice upheld the grounds of the two appeals by which the applicant complained that the General Court had held that the Commission had not erred in law or made a manifest error of assessment by justifying the decisions of 16 December 2014 and 8 May 2015 by the existence of certain doubts relating to its status as an international organisation within the meaning of the EU Financial Regulations.
111    The Court of Justice held that the General Court had erred in law by merely asserting that the arguments and evidence put forward by the applicant did not call into question the Commission’s doubts as to its status as an international organisation and by refraining from reviewing the legality of the decisions of 16 December 2014 and 8 May 2015 in the light of the concept of ‘international organisation’ within the meaning of the EU Financial Regulations.
112    In that context, the Court of Justice
observed, inter alia, that none of the three factors on which the Commission relied in order to adopt the decisions of 16 December 2014 and 8 May 2015 was capable of giving rise to doubts in law regarding the applicant’s status as an international organisation.
113    According to those three factors, first, five EU Member States, which the applicant presented as being its members, did not consider themselves as such, second, the Secretary-General of the United Nations (UN) had indicated that the applicant was not a specialist UN agency and, third, there was uncertainty as to the powers of the persons who represented certain States when the act establishing the applicant was signed.
114    Thus, the Court of Justice found that those three elements related only to the status of five States presented by the applicant as forming part of, or having formed part of, its members and the powers of the persons who had represented those States when the act establishing it was signed, and not to all the States which were members of the applicant or to the status of the applicant itself.
115    In particular, in paragraph 94 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice held as follows:
‘Regarding the first of those considerations, concerning whether several Member States presented by IMG as being members of the organisation are in fact members, it is apparent from the General Court’s own findings that the Commission’s doubts in that respect concerned only “some” of IMG’s members – more specifically, 5 out of a total of 16. However, the consequence in international law of such doubts, even if they were in fact well founded, would not be to deprive the entity of which those States are not – or no longer – members of its status as an “international organisation”, all the less so when, as in the present case, the States concerned form only a small part of the entity in question.’
116    Lastly, the Court of Justice held, in paragraphs 98 to 106 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), first, that the finding of errors of law made by the General Court implied that the judgments of 2 February 2017, International Management Group v Commission (T‑29/15, not published, EU:T:2017:56), and of 2 February 2017, IMG v Commission (T‑381/15, not published, EU:T:2017:57), should be set aside in their entirety, second, that the two disputes were in a state of readiness for adjudication in so far as the applicant sought annulment of the decisions of 16 December 2014 and of 8 May 2015, third, that those two decisions were unlawful in the same way as the abovementioned judgments, so that they also had to be set aside in their entirety, and fourth, that the claim for damages for the harm caused to the applicant by the decision of 8 May 2015 was, in contrast, not ready for adjudication and should therefore be referred back to the General Court.
117    Thus, in paragraph 104 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Court of Justice held as follows:
‘In the present case, it is appropriate that the Court give final judgment on the two actions for annulment, since the state of the proceedings so permits. It follows from paragraphs 92 to 96 above that the decisions at issue are unlawful in so far as the factors relied on by the Commission in support of those decisions are not such as to call into question IMG’s status as an international organisation within the meaning of the 2002 and 2012 Financial Regulations. Consequently, the Court sets aside those decisions in their entirety.’
118    In the first place, it follows from the foregoing that the grounds set out in paragraphs 94 and 104 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), cannot be read independently of paragraphs 92 to 96 of that judgment, to which paragraph 104 refers, which constitute the necessary support for the operative part by which the Court of Justice annulled the decisions of 16 December 2014 and 8 May 2015. It follows that the force of res judicata attaching, in particular, to paragraph 94 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), also extends to paragraph 104 of that judgment.
119    In the second place, it is not apparent from the statement of reasons for the contested decision, as summarised in paragraphs 66 to 84 above, that that decision is based on any of the three factors which gave rise to the Commission’s doubts and led it to adopt the decisions of 16 December 2014 and 8 May 2015.
120    Thus, since the Commission based the contested decision on grounds other than those which supported the decisions of 16 December 2014 and 8 May 2015, which the Court of Justice declared unlawful in the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the applicant is wrong to claim that the contested decision breaches the principle of res judicata attaching, inter alia, to paragraphs 94 and 104 of that judgment. Accordingly, that complaint must be dismissed as unfounded, as must the first part of the present plea in law in its entirety.
(b)    The second part, alleging breach of the principle of good faith, the maxim ‘nemo auditur propriam turpitudinem allegans’ and the principle of non-retroactivity
121    This part consists of two complaints, alleging, first, breach of the principle of good faith and of the maxim ‘nemo auditur propriam turpitudinem allegans’ (‘the maxim “nemo auditur”’) and, second, breach of the principle of non-retroactivity of EU measures.
122    It is appropriate for the Court to examine, first of all, the second complaint, alleging breach of the principle of non-retroactivity of EU measures, and then the first complaint.
(1)    The second complaint, alleging breach of the principle of non-retroactivity of EU measures
123    The applicant submits that the contested decision breaches the principle of non-retroactivity of EU measures since there was no justification for the retroactive re-assessment of its status. Moreover, it submits that the retroactive effect of the contested decision is not justified by the facts of the case, but by new facts, analysed in the light of new legislation.
124    In that regard, it must be borne in mind that, according to the case-law, the fundamental principle of legal certainty in its various forms aims to ensure that situations and legal relationships governed by EU law remain foreseeable. The principle of legal certainty precludes, inter alia, an EU measure from entering into force from a point in time before that measure was published (see, to that effect, judgment of 9 March 2023, Galeote and Watson v Parliament, C‑715/21 P and C‑716/21 P, not published, EU:C:2023:190, paragraph 113 and the case-law cited).
125    However, as is clear from the case-law cited in paragraphs 97 to 99 above, a measure taken to comply with a judgment annulling an act may, in exceptional circumstances, be retroactive, first, where the purpose to be achieved so demands, that is to say if the retroactive decision is intended to satisfy at least an aim which is in the public interest and, secondly, if the legitimate expectations of those concerned are duly respected.
126    Thus, it is necessary to ascertain whether the two conditions referred to in paragraph 125 above are met in the present case.
127    In the first place, as regards the first condition relating to the fulfilment of an aim in the public interest, it follows from the case-law cited in paragraphs 98 and 99 above that a retroactive decision taken in compliance with a judgment annulling a measure and whose purpose is to remedy the unlawfulness found in that judgment is intended to satisfy an aim which is in the public interest, since the annulment of a measure by the EU Courts requires its author to fill the legal vacuum created by the annulment of that measure and to restore the applicant to the legal position it was in before it was adopted (see, to that effect and by analogy, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 106).
128    In the present case, it follows from the examination of the first part of the present plea, and in particular paragraph 103 above, that the Commission could satisfy its obligation to comply with the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), by adopting procedural measures designed to enable it to remedy the irregularity found by the Court of Justice and, potentially, to adopt a new act, intended to replace the decisions of 16 December 2014 and 8 May 2015 annulled by that Court, after having obtained the information which it considered necessary to substantiate that new act in law and in fact.
129    Thus, since the Commission adopted the contested decision in order to remedy the unlawfulness of the decisions of 16 December 2014 and 8 May 2015 and to avoid a legal vacuum following their annulment by the Court of Justice, it was in the exceptional situation in which it could confer retroactive character on the contested decision.
130    Moreover, that retroactivity was all the more necessary since, as is clear from paragraph 23 of the order of 9 June 2020, International Management Group v Commission (C‑183/17 P-INT, EU:C:2020:447), the Court of Justice, in the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), in no way decided the issue of whether, on the basis of an analysis not vitiated by any errors of law and of all the relevant factors, it should be found that the applicant had the status of an international organisation when the decisions of 16 December 2014 and 8 May 2015 were adopted or, on the contrary, the possibility that it had such a status should be excluded.
131    Thus, the fact that the contested decision was not retroactive left a doubt as to whether it was possible for the applicant to claim, during the period between 16 December 2014 and the date of adoption of the contested decision, the status of an international organisation enabling it, in accordance with EU financial rules, to implement the EU budget under indirect management.
132    It is clear from paragraphs 57 to 59, 61 and 88 to 90 of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), and from paragraph 111 of the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722), that the Commission is under an obligation to ensure that the entities to which it has entrusted or intends to entrust budget implementation tasks, pursuant to the EU financial legislation relating to the indirect management of the EU budget by international organisations, have that status within the meaning of that legislation.
133    In view of the role and responsibility that Article 310(5) and the first paragraph of Article 317 TFEU and the Financial Regulation confer on the Commission with regard to the implementation of the EU budget, that institution has the task of ensuring compliance with the principle of sound financial management. It follows that, in the event that the Commission chooses to use a method of implementing the budget involving recourse to a third party, it is required to ensure, during that implementation and then throughout the performance of the budgetary tasks concerned, compliance with the applicable conditions, in particular those governing the grant of the corresponding funds and their subsequent use (see, to that effect, judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 151 and the case-law cited).
134    Consequently, the clarification of the applicant’s legal status and the obligation to remedy the unlawfulness of the decisions of 16 December 2014 and 8 May 2015 constituted aims in the public interest enabling the Commission to adopt a new decision taking retroactive effect from the decision of 16 December 2014, with the result that the first of the conditions referred to in paragraph 125 above is met.
135    In the second place, as regards the second condition relating to the protection of legitimate expectations, it must be recalled that, according to settled case-law, the finding of a breach of that principle presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union (see, to that effect, order of 2 June 2022, Arnautu v Parliament, C‑573/21 P, not published, EU:C:2022:448, paragraph 34 and the case-law cited).
136    In that context, it is for the General Court to determine whether the conduct of the administrative authority gave rise to a reasonable expectation in the mind of a reasonably prudent person, and if that is the case, to establish whether that expectation is legitimate (see order of 2 June 2022, Arnautu v Parliament, C‑573/21 P, not published, EU:C:2022:448, paragraph 35 and the case-law cited).
137    It is not apparent from the documents before the Court that, following the judgment of 31 December 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the Commission provided the applicant with precise, unconditional and consistent assurances with regard to the adoption of a decision granting it, retroactively, the status of international organisation with effect from 16 December 2014.
138    Consequently, the contested decision cannot be regarded as having been adopted in breach of the principle of legitimate expectations, and therefore, since the two conditions referred to in paragraph 125 above are satisfied, it cannot be regarded as having breached the principle of non-retroactivity either.
139    In the third place, as regards the argument that the retroactivity of the contested decision is justified, not by the facts of the case, but by new facts, analysed in the light of new legislation, it is true that the re-assessment of the applicant’s legal status was formally initiated by the Commission following the judgment of 31 January 2019 International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), and that the replies of the States questioned are therefore subsequent to the decisions of 16 December 2014 and 8 May 2015.
140    In that regard, it follows from the case-law that, where a retroactive decision is adopted, compliance with the principles governing the temporal application of the law and requirements relating to the principles of legal certainty and the protection of legitimate expectations require the application of the substantive rules in force at the date of the facts in issue even if those rules are no longer in force when that decision is adopted (see, to that effect, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 40 and the case-law cited).
141    In particular, in the context of a procedure for replacing an annulled act, the institution concerned must have reference to the date on which it had adopted the annulled act with a view to adopting the replacement act, without prejudice to the possibility of relying, in its new decision, on grounds other than those on which it based its first decision (see, to that effect, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 58 and the case-law cited).
142    Thus, the applicant is justified in claiming that the principle of non-retroactivity, which is one of the components of the principle of legal certainty, precludes, where an institution implements a judgment annulling a measure, that institution from adopting a retroactive decision on the basis of facts which were not relevant in the light of the temporal scope of that decision or substantive rules which were not in force during the period concerned by that decision.
143    However, in the present case, the applicant has not established that the contested decision, in so far as it is retroactive, is based on substantive rules which were not in force during the period concerned by that decision or on facts subsequent to the decisions of 16 December 2014 and 8 May 2015.
144    First, it is apparent from the grounds for the contested decision that the Commission relied on the provisions of the EU Financial Regulations applicable to the applicant on 16 December 2014, and then on the provisions of the same regulations applicable to the period after that date.
145    It follows from the third subsection of the first part of the final assessment that the Commission applied, for the period from 16 December 2014 to 31 December 2015, Article 58 of Regulation No 966/2012 and Article 43 of Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012, for the period from 1 January 2016 to 1 August 2018, the same regulations as amended, respectively, by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1) and Commission Delegated Regulation (EU) 2015/2462 of 30 October 2015 (OJ 2015 L 342, p. 7), and, for the period from 2 August 2018, Articles 62 and 156 of Regulation 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation No 966/2012 (OJ 2018 L 193, p. 1).
146    Second, the applicant does not demonstrate that the positions taken by the States which it claims to be or to have been its members and that the Commission took into account in adopting the contested decision changed between 16 December 2014 and the date on which that decision was adopted with regard to whether it constituted an international organisation.
147    It is true that, in order to adopt the contested decision, the Commission carried out, following the delivery of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), a consultation of the States which it believed were or had been members of the applicant. However, it is apparent from the examination of the replies that, although they are not drafted using exactly the same wording as the replies given by the same States when they were questioned by OLAF in 2014, their content is essentially identical.
148    Consequently, the positions adopted by the States in response to the consultation prior to the adoption of the contested decision do not contain new facts on which the Commission relied retroactively. They reflect the opinion of those States on whether the applicant is an international organisation, as had been expressed to OLAF prior to the adoption of the decision of 16 December 2014.
149    In those circumstances, the second complaint must be dismissed as unfounded.
(2)    The first complaint, alleging breach of the principle of good faith and the maxim ‘nemo auditur’
150    In support of the first complaint, the applicant submits that, in so far as it refuses to recognise it as an international organisation since 16 December 2014, the contested decision breaches the principle of good faith and the maxim ‘nemo auditur’.
151    It should be borne in mind that Article 76(d) of the Rules of Procedure provides that the application at first instance must contain ‘the pleas in law and arguments relied on and a summary of those pleas in law’. Thus, according to settled case-law, the EU Courts are not required to respond to the arguments of a party which are not sufficiently clear and precise, in that they have not been expanded upon or accompanied by a specific line of argument intended to support them (see judgment of 18 November 2021, Greece v Commission, C‑107/20 P, not published, EU:C:2021:937, paragraph 76 and the case-law cited).
152    In the first place, it must be observed that the applicant failed to provide any explanation as to the impact on the lawfulness of the contested decision of the maxim ‘nemo auditur’, according to which ‘no one may take advantage of his or her own misconduct’.
153    Thus, the argument alleging failure to observe the maxim ‘nemo auditur’ is insufficiently substantiated in the light of the requirements arising from Article 76(d) of the Rules of Procedure.
154    In any event, even if the applicant intended to claim that the Commission acted wrongfully by relying on the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), in order to justify a posteriori the decisions of 16 December 2014 and 8 May 2015, it follows from the examination, on one hand, of the first part of the first plea in law that the contested decision is not based on the same grounds as those decisions and, on the other, of the second complaint in this part that the Commission did not disregard the principle of non-retroactivity of EU measures.
155    Consequently, the argument alleging failure to observe the maxim ‘nemo auditur’ must be dismissed.
156    In the second place, as regards the principle of good faith, it must also be observed that the applicant has also not defined the scope of that principle or the provisions on which it is based.
157    First, assuming that the applicant intended to refer to the obligation on the parties to a contract to perform in good faith the terms of that contract which binds them, it must be held that the contested decision was not adopted in the context of a contract which it concluded with the Commission.
158    In addition, it must be stated that the annulment by the Court of Justice of the decisions of 16 December 2014 and 8 May 2015 has no bearing on the absence of contractual relations between the applicant and the Commission since 16 December 2014.
159    The purpose of the decision of 16 December 2014 was to withdraw the applicant’s status as an addressee of Implementing Decision C(2013)
7682 final on the Annual Action Programme 2013 in favour of Myanmar/Burma, and thus to prevent the conclusion of an agreement to that end between the applicant and the Commission.
160    Similarly, the purpose of the decision of 8 May 2015 was to suspend the applicant’s participation in new EU-funded projects until the Commission had clarified its legal status.
161    Thus, the annulment of the decisions of 16 December 2014 and 8 May 2015 did not have the effect of re-establishing the contractual links between the Commission and the applicant, but merely made it possible for them to conclude between them an agreement for the implementation of the trade development programme in Myanmar/Burma and, where appropriate, other agreements relating to reconstruction and development, provided that the Commission, following a re-assessment of the applicant’s legal status, recognised it as an international organisation.
162    Second, assuming that the applicant intended to refer to the principle of good faith, in so far as it corresponds to a customary principle of public international law, it must be recalled that that principle, as laid down in Article 18 of the Vienna Convention, requires a State to refrain from acts which would defeat the object and purpose of a treaty before its entry into force when it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it has made its intention clear not to become a party to the treaty or when it has consented to be bound by the treaty.
163    While it is true that the principle of good faith is binding on the EU institutions (see judgment of 17 January 2007, Greece v Commission, T‑231/04, EU:T:2007:9 paragraph 85 and the case-law cited), the applicant has not established, or even alleged, in its pleadings relating to the present plea in law, that the European Union had signed a treaty establishing it as an international organisation or had exchanged instruments constituting such a treaty subject to ratification, acceptance or approval, or, even, had consented to be bound by such a treaty.
164    In that regard, it is settled-case-law that the applicant is required to set out in a sufficiently systematic manner, in support of each of the pleas in law put forward, the arguments in law and in fact capable of justifying it, without the General Court being obliged, due to a lack of structure in the application or a lack of precision or rigour in the reasoning, to reconstruct it by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which the applicant did not intend it to have. To decide otherwise would be contrary to the principle of the sound administration of justice, to the principle that the subject matter of an action is delimited by the parties, and to the defendant’s rights of defence (see, to that effect, judgment of 12 November 2020, Fleig v EEAS, C‑446/19 P, not published, EU:C:2020:918, paragraphs 60 and 61).
165    Consequently, the argument alleging breach of the principle of good faith must be rejected as insufficiently substantiated in the light of the requirements of Article 76(d) of the Rules of Procedure and, consequently, the first complaint in the present part of this plea must be dismissed in its entirety.
(c)    The third part, alleging breach of the principle of equal treatment
166    In the reply, the applicant submits that, unlike many legal entities which are not recognised by the Commission as international organisations but which are public bodies, it no longer benefited, because of the Commission’s doubts following the OLAF investigation concerning it, from any contract using the indirect management method or any contract awarded by mutual agreement in accordance with other provisions of the Financial Regulations laid down for crisis or emergency situations, without knowing the reasons for that discriminatory treatment.
167    The applicant also submits that the Organisation for Security and Cooperation in Europe (OSCE) is not recognised as an international organisation by all the States which have contributed to its creation and activities, nor does it have a legal instrument establishing it under international law and that those factors have not prevented the Commission from recognising its status as an international organisation.
168    In that regard, it should be recalled that the principle of equal treatment, enshrined in Article 20 of the Charter, is a general principle of EU law which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 95 and the case-law cited).
169    The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. In so far as the situations are not comparable, a difference in treatment of the situations concerned does not infringe equality before the law as enshrined in Article 20 of the Charter (see judgment of 14 July 2022, Commission v VW and Others, C‑116/21 P to C‑118/21 P, C‑138/21 P and C‑139/21 P, EU:C:2022:557, paragraph 96 and the case-law cited).
170    In the first place, it must be observed that the sole purpose of the contested decision is to refuse to grant the applicant the status of international organisation provided for by the EU Financial Regulations for the implementation of EU funds using the indirect management method, without prejudice to the possibility for the applicant to rely on other detailed rules laid down by those regulations with a view to its possible participation in the implementation of that budget.
171    Thus, since the contested decision does not prevent the applicant from participating in the indirect management of the EU budget in accordance with provisions other than those laid down in the EU Financial Regulations for the benefit of international organisations, it cannot reasonably complain that that decision is the source of alleged discriminatory treatment as described in paragraph 166 above.
172    Consequently, the applicant’s claims summarised in paragraph 166 above, even if well founded, have no bearing on the lawfulness of the contested decision and are therefore ineffective.
173    In the second place, apart from the fact that it is not apparent from the documents before the Court that the OSCE was recognised, by the Commission, as an international organisation with a view to the indirect management of the EU budget, it must be held that the applicant has not demonstrated that it is in a situation comparable to that of that organisation.
174    The applicant has not disputed the Commission’s allegations that, unlike itself, the OSCE is recognised as an international organisation by a large number of subjects of international law, in particular by a majority of the members of that organisation.
175    Consequently, without it being necessary to rule on its admissibility (see, to that effect, judgment of 18 May 2022, TK v Commission, T‑435/21, not published, EU:T:2022:303, paragraph 42; see also, by analogy, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52), the third part must be dismissed as must, consequently, the first plea in law in its entirety.
3.      The third plea in law, alleging breach of the principle of legal certainty
176    The applicant submits that, by having recourse prior to the adoption of the contested decision to an investigation procedure of certain States presented as being its members, even though the Commission had the relevant documents and the assessment method set out in the guidance, the Commission breached the principle of legal certainty.
177    In that regard, in the first place, as recalled in paragraph 124 above, the fundamental principle of legal certainty in its various forms aims to ensure that situations and legal relationships governed by EU law remain foreseeable.
178    While that principle precludes, in principle, an EU measure from entering into force from a point in time before that measure was published, it follows from the examination of the first plea in law, in particular from paragraph 149 above, that the contested decision was not adopted in disregard of the principle of non-retroactivity, which is a specific expression of the principle of legal certainty.
179    Consequently, even if the applicant intended to plead breach of the principle of legal certainty in so far as it covers the principle of non-retroactivity of acts adopted by EU institutions, the present plea must be dismissed as unfounded.
180    In the second place, it also follows from the principle of legal certainty that EU legislation must be certain and its application foreseeable by those subject to it, and that requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which they impose on them (see judgment of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei, C‑144/14, EU:C:2015:452, paragraph 34 and the case-law cited).
181    However, it must be held that, in the present case, the contested decision does not fall within the scope of EU legislation or rules within the meaning of the case-law cited in paragraph 180 above, rather it is an individual decision taken pursuant to EU financial legislation or rules.
182    In addition, it is apparent from the statement of reasons for the contested decision that the re-assessment of the applicant’s legal status, which the Commission carried out, does not result from a substantial change in the EU financial rules governing the conditions for implementation of the EU budget under indirect management or from a new interpretation of those rules by the Commission.
183    It must be recalled that Article 53(c) and Article 53d of Regulation No 1605/2002, Article 58(1)(c) of Regulation No 966/2012 and Article 62 of Regulation 2018/1046 confer on the Commission the responsibility for implementing the EU budget, whilst providing for several methods of implementing that budget, one of which, referred to as ‘joint management with international organisations’ in the first of those regulations, then ‘indirect management’ in the second, allows that institution to ‘entrust budget implementation tasks’ to such organisations, an option within the framework of which it enjoys broad discretionary powers (see, to that effect, judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 148).
184    The term ‘international organisation’, referred to in Article 53(c) and Article 53d of Regulation No 1605/2002, in Article 58(1)(c)(ii) of and (8) Regulation No 966/2012 and in Article 62(1)(c)(ii) of Regulation 2018/1046 has been defined, in almost identical terms, in Article 43(2) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1), and then in Article 43(1) of Delegated Regulation No 1268/2012, which repealed and replaced Regulation No 2342/2002, and in Article 156 of Regulation 2018/1046. Thus, under the three latter provisions, that term covers international public sector organisations set up by international agreements (see, to that effect, judgment of 31 January 2019, International Management Group v Commission, C‑183/17 P and C‑184/17 P, EU:C:2019:78, paragraph 91).
185    Consequently, even if the applicant had intended to plead breach of the principle of legal certainty, as defined in paragraph 180 above, it is not justified in claiming that the contested decision stems from unclear EU legislation or rules, or constitutes an unforeseeable application of EU financial legislation or rules.
186    In the third place, it follows from paragraph 111 of the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722), referred to in paragraph 101 above, and from the principle of sound financial management, that the Commission is under an obligation to ensure that the entities to which it has entrusted or intends to entrust budget implementation tasks, pursuant to the financial legislation relating to the indirect management of the EU budget by international organisations, have that status within the meaning of that legislation.
187    First, the applicant has not set out the reasons why the principle of legal certainty would preclude, in a situation such as that in the present case, in accordance with the principle of sound financial management, the Commission from questioning the States which are alleged to be members of an international organisation in order to verify whether that organisation has that status and meets the requirements of the EU financial legislation relating to the indirect management of the EU budget.
188    Second, assuming that the applicant intended, by relying on the principle of legal certainty, to refer to the principle of legitimate expectations, it follows from the consideration of the first plea in law that the contested decision was not adopted in breach of that principle.
189    Consequently, the present plea in law must be dismissed as unfounded.
4.      The fourth plea in law, alleging manifest errors of assessment and other errors in law
190    The fourth plea in law consists, in essence, of three parts, alleging manifest errors of assessment and errors in law resulting from, in respect of the first part, the fact that the Commission did not correctly identify the applicant’s members, in respect of the second part, the fact that it refused to classify the act establishing the applicant as an international agreement establishing an international organisation and, in respect of the third part, the fact that it refused to recognise the applicant’s status as an international organisation notwithstanding the subsequent practice of its members and the recognition of that status by the European Union and some third countries.
191    As a preliminary point, it must be borne in mind that, as stated in paragraph 183 above, the Commission enjoys a broad discretion when exercising its responsibility for implementing the EU budget, in particular when it chooses to implement that budget using the indirect management method, and that, in accordance with that method of management, it entrusts budget implementation tasks to international organisations.
192    Thus, where the Commission exercises the powers set out in paragraph 191 above, the adverse decisions it adopts in that context are subject to limited review by the General Court which is confined to the manifest error of assessment, without prejudice to the examination of other grounds of illegality which may be relied on in an action for annulment, in accordance with the second paragraph of Article 263 TFEU.
193    Nevertheless, where, as in the present case, the Commission refuses to entrust budget implementation tasks to an organisation using the indirect management method on the ground that that organisation does not have the status of an international organisation, the lawfulness of such a decision is subject to review by the Court, both as regards errors of law and manifest errors of assessment.
194    First, in such a case, the implementation by the Commission of the general rules which make it possible to define and identify international organisations falls within the scope of a review of errors of law.
195    Second, the interpretation of the rules of the organisation which claims to be an international organisation for the purpose of implementing the EU budget using the indirect management method and the interpretation of the positions adopted by its members, which are likely to be somewhat complex, are subject to a review limited to manifest errors of assessment.
196    Those clarifications having been made, the Court must, before examining the applicant’s arguments, clarify the definition of the concept of ‘international organisation’ as provided for by the EU Financial Regulations for the implementation of EU funds using the indirect management method.
(a)    The definition of the concept of ‘international organisation’ provided for by the EU Financial Regulations
197    As a preliminary point, it should be recalled that the concept of ‘international organisation’ as defined by the successive provisions of the EU Financial Regulations, referred to in paragraph 184 above, covers international public sector organisations set up by international agreements.
198    In the absence of a more precise definition of the concepts of ‘international organisation’ and ‘international agreement’, it must be assumed that those concepts used in the EU Financial Regulations correspond to those used in international law (see, to that effect, Opinion of Advocate General Campos Sánchez-Bordona in IMG v Commission, C‑620/20 P, EU:C:2022:158, point 50).
199    It is settled case-law that EU law must be interpreted in the light of the relevant rules of international law, since international law is part of the European Union legal order and is binding on the institutions (see judgment of 15 January 2015, Evans, C‑179/13, EU:C:2015:12, paragraph 35 and the case-law cited).
200    However, in so far as the concepts of ‘international organisation’ and ‘international agreement’ are used in the EU Financial Regulations for the specific purpose of implementing its budget, they must be interpreted narrowly, in order to protect the financial interests of the European Union (see, by analogy, judgments of 2 July 2015, Demmer, C‑684/13, EU:C:2015:439, paragraph 85, and of 20 December 2017, Erzeugerorganisation Tiefkühlgemüse, C‑516/16, EU:C:2017:1011, paragraph 58; see. also, to that effect, Opinion of Advocate General Campos Sánchez-Bordona in IMG v Commission, C‑620/20 P, EU:C:2022:158, point 51).
201    Thus, in a dispute such as that in the present case, the Court must apply the concepts of public international law to which the EU Financial Regulations refer by having recourse to the instruments of that law which define those concepts, as interpreted in accordance with the case-law.
202    In particular, in the present case, it is necessary to interpret the concepts of ‘international organisation’ and ‘international agreement’ provided for in the EU Financial Regulations for the implementation of its budget under indirect management in the light of the customary principles of public international law contained, inter alia, in the Vienna Convention and the Draft Articles.
203    In that regard, it follows from Article 2(1)(i) of the Vienna Convention that the expression ‘international organisation’ means an intergovernmental organisation. Moreover, Article 2(a) of the Draft Articles states that that expression means an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality and that international organisations may include as members, in addition to States, other entities.
204    In the first place, as regards the condition relating to establishment by a treaty or other instrument governed by international law, it follows from Article 2(1)(a) of the Vienna Convention that ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
205    Thus, that instrument or those instruments may be the expression of the ‘convergence of intent’ on the part of two or more subjects of international law, which those instruments establish formally (see, to that effect, Opinion 1/13 (Accession of third States to the Hague Convention), of 14 October 2014, EU:C:2014:2303, paragraph 37).
206    Furthermore, it follows from the case-law of the international courts that, irrespective of its political significance, a document signed by States cannot constitute an international agreement if it does not contain any provision creating rights or obligations to which those States have consented (see judgment of the International Court of Justice of 1 October 2018, Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), I.C.J. Reports 2018, p. 507, paragraphs 105 and 106 and the case-law cited).
207    In the second place, as regards the condition relating to possession of its own international legal personality, first, it follows from the case-law of the international courts that the recognition of an international organisation is subject to the organisation concerned having a legal personality.
208    An entity established by States and, where appropriate, by one or more international organisations, does not, in the absence of a legal personality of its own, have the character of an international organisation, but rather that of a body which is dependent either on the States which established it (see, to that effect, judgment of the International Court of Justice of 26 June 1992, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, I.C.J. Reports 1992, p. 240, paragraph 47), or on an international organisation which hosts that entity (see, to that effect, Advisory Opinion of the International Court of Justice, Judgment No 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, of 1 February 2012, I.C.J. Reports 2012, p. 10, paragraphs 57 and 61).
209    Second, it also follows from the case-law of the international courts that international organisations enjoy, in principle, privileges and immunities which are necessary for the performance of their tasks (see, to that effect, judgment of the Permanent Court of Arbitration of 22 November 2002, Dr. Reineccius and Others v. Bank for International Settlements, Case No 2000-04, paragraph 108; Advisory Opinion of the International Court of Justice, Judgment No 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, of 1 February 2012, I.C.J. Reports 2012, p. 10, paragraph 58, and judgment of the International Court of Justice of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), I.C.J. Reports 2010, p. 14, paragraph 88).
210    Unlike the immunity of States from jurisdiction, based on the principle ‘par in parem non habet imperium’, the immunities of international organisations are, as a general rule, conferred by the treaties establishing those organisations (see, to that effect, judgment of 3 September 2020, Supreme Site Services and Others, C‑186/19, EU:C:2020:638, paragraph 61 and the case-law cited), and have a functional character, inasmuch as they are intended to avoid any interference with the functioning and independence of the organisations concerned (see, to that effect and by analogy, judgment of 17 December 2020, Commission v Slovenia (ECB Archives), C‑316/19, EU:C:2020:1030, paragraph 73 and the case-law cited).
211    Third, it follows from the case-law that the constituent instruments of international organisations are treaties of a particular type in that their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realising common goals. Thus, international organisations are governed by the principle of speciality, that is to say they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them and which are normally the subject of an express statement in their constituent instruments (see, to that effect, Advisory Opinion of the International Court of Justice
of 8 July 1996, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, I.C.J. Reports 1996, p. 66, paragraphs 19 and 25; judgments of the International Court of Justice of 11 June 1998, Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, I.C.J. Reports 1998, p. 275, paragraphs 64 to 67, and of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), I.C.J. Reports 2010, p. 14, paragraph 89).
212    Thus, an international organisation cannot be reduced to merely an optional mechanism available to the parties which each may use or not, as it pleases. By creating an international organisation and investing it with all the resources necessary for its operation, its founders demonstrate their intention to provide the best possible guarantees of stability, continuity and effectiveness to the performance of the tasks entrusted to that organisation, with the result that they cannot depart from that framework unilaterally, as they see fit, and put other channels of communication in its place (see, to that effect, judgment of the International Court of Justice
of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), I.C.J. Reports 2010, p. 14, paragraphs 90 and 91).
213    It is in the light of those definitions and principles that the Court must examine the merits of the arguments put forward by the applicant in support of the present plea in law.
(b)    The first part, alleging manifest errors of assessment and errors in law relating to the identification of the applicant’s members
214    The first part is composed, in essence, of three complaints, alleging, first, a manifest error of assessment resulting from the fact that the Commission drew an artificial distinction between the applicant’s founding States, the contributing States, the members of its steering committee and the members of the Government Support Group (‘GSG’), second, a manifest error of assessment by the Commission in connection with the interpretation of the positions adopted by Belgium and Austria and, third, errors in law and a manifest error of assessment in that the Commission considered that the European Union was not a member of the applicant.
(1)    The first complaint, alleging a manifest error of assessment resulting from an artificial distinction between the applicant’s founding States, the contributing States and the members of its steering committee
215    The applicant complains, in essence, that the Commission misidentified its members by drawing an artificial distinction between its founding States, the contributing States, the members of its steering committee and the members of the GSG. Thus, according to the applicant, all the States and international or regional organisations which contribute financially or in kind to operations which it carries out and the members of the GSG, which are its founding members, must be regarded as members of its steering committee and, accordingly, as its members, even if they do not actually sit on that committee.
216    In the first place, it must be observed that it is not apparent from the statement of reasons for the contested decision that the Commission formally drew a distinction between the applicant’s founding States, the contributing States, the members of its steering committee, which became the standing committee when its statute was amended in 2012, and the members of the GSG.
217    Thus, in the contested decision, the Commission merely states that none of the States it consulted following the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), with the exception of Austria, acknowledged that it has been a member of the applicant organisation since 16 December 2014.
218    In the second place, even if the contested decision could be interpreted as drawing a distinction between the applicant’s founding States, the contributing States, the members of its steering committee and the members of the GSG, first, it must be recalled that, according to the resolution of 25 November 1994, only the members of the applicant’s steering committee were under an obligation to contribute financially to its budget or operation, and not all of the members of the GSG who were invited to sign that resolution.
219    Thus, the resolution of 25 November 1994 did not impose any obligation on its signatories to become members of the applicant’s steering committee or to join it, but left them complete freedom in that regard.
220    Second, that freedom for the States and international organisations that were signatories to the resolution of 25 November 1994 to accede to the applicant is confirmed by the comments made by the Chairman of the meeting of 25 November 1994 at which the resolution of the same date was adopted, as transcribed in the minutes of that meeting dated 29 November 1994 (‘the minutes of 29 November 1994’).
221    It is apparent from the minutes of 29 November 1994 that the Chairman of the meeting of 25 November 1994, during which the resolution of the same date was adopted, emphasised that, by signing that document, the States which participated in that meeting as members of the GSG would not automatically become members of the applicant’s steering committee.
222    Consequently, the applicant is not justified in claiming that the mere fact that a State or an international organisation was a member of the GSG and, by signing the resolution of 25 November 1994, participated in its foundation, makes that State or organisation one of its members.
223    Third, it is clear from the applicant’s statute that it does not define either the status of the applicant’s members, or the procedure for joining the applicant or the procedure at the end of which a State or an international organisation loses the status of member of the applicant.
224    However, the applicant’s statute established, by the steering committee, which became the standing committee in 2012, a decision-making body on which States and international organisations may sit, an admission procedure within that body and a procedure for reviewing the status of member of that body.
225    In particular, in the version resulting from the 2012 amendment to the applicant’s statute, Article 5 thereof defines the members of its standing committee and a procedure for the admission of members of that decision-making body, in addition to a procedure for the review and withdrawal of membership of that body.
226    Thus, it is apparent from the applicant’s statute that the procedure for admitting a State or an international body to its steering committee, which has become a standing committee, is equivalent, for the State or international organisation concerned, to a procedure for becoming a member of the applicant.
227    In addition, the applicant’s statute must be interpreted as meaning that, without prejudice to the procedures for the review and withdrawal of membership of the standing committee, it was open to the States and international organisations which had been admitted to it no longer to sit on that committee without carrying out any particular formality.
228    It cannot be inferred from the absence in the applicant’s statute of a clause defining a procedure for voluntary renunciation of the status of member of its steering committee that the States or international organisations which have been admitted to that body were admitted on a permanent basis, without any possibility of leaving that organisation.
229    That interpretation is, moreover, supported by the positions taken by several States which have stated that they are no longer members of the applicant’s steering committee notwithstanding the absence of a clause, in the applicant’s statute, setting out a specific formality for the voluntary renunciation of membership of its steering committee.
230    In those circumstances, only those States and international organisations which had applied for admission to the applicant’s steering committee or standing committee, whose application had not given rise to objections from the members of that decision-making body, and which continued to sit on the committee on 16 December 2014 and, where appropriate, beyond that date, were to be regarded as being members of the applicant organisation on the date on which the contested decision took effect.
231    Consequently, the applicant is not justified in criticising the Commission for not having considered certain States and certain international organisations to be its members if those States or organisations had not sat on its steering committee or standing committee since 16 December 2014, even if they had participated in the GSG or even if they contributed or had contributed financially or in kind to its budget or operations.
232    It follows that this complaint must be dismissed as unfounded.
(2)    The second complaint, alleging a manifest error of assessment vitiating the interpretation of the positions adopted by Belgium and Austria
233    The applicant submits, in essence, that an analysis of the responses of the States questioned shows that at least two of them, namely Belgium and Austria, recognise that it is an international organisation and that they are or were founding members, and therefore it has justified that it has at least two States among its members and should be recognised as an international organisation.
234    The arguments which make up this complaint and which concern the Belgian and Austrian authorities’ replies must be examined separately.
(i)    The first argument, alleging a manifest error of assessment vitiating the interpretation of the Austrian authorities’ reply
235    It follows from Austria’s reply of 8 April 2020 to the Commission’s request for consultation that Austria acknowledged being a member of the applicant.
236    It is clear from the statement of reasons for the contested decision, as set out in paragraph 81 above, that the Commission did not dispute that position taken by the Austrian authorities.
237    Moreover, it is also apparent from the Austrian authorities’ reply of 8 April 2020 that they considered that, according to the resolution of 25 November 1994, which, from their view, did not constitute an international agreement, the applicant was, at the time of its foundation, a temporary independent international body vested with limited legal capacity and not an international organisation. However, those authorities also considered that subsequent practice, consisting of the conclusion of headquarters agreements and other international treaties, and the now permanent character of the applicant seemed to indicate that it had international legal personality to the extent necessary to fulfil its functions. On that basis, they considered that the applicant was an international organisation.
238    It is apparent from the statement of reasons for the contested decision that the Commission faithfully reproduced the content of the Austrian authorities’ reply, while taking the view that that reply did not call into question the conclusion reached by that institution in subsection
A.7(b) of the final assessment, according to which the applicant did not fulfil the conditions laid down in EU financial legislation to be eligible for indirect management. First, the applicant had not been established as an international organisation by an international agreement and, second, it is clear from the replies of the States consulted by the Commission that subsequent practice did not demonstrate a wide and clear recognition of its status as an international organisation on the part of the States and international organisations that were members of it.
239    It follows that the Commission did not commit a manifest error of assessment in its interpretation of the Austrian authorities’ reply of 8 April 2020. That first argument must therefore be dismissed as unfounded.
(ii) The second argument, alleging a manifest error of assessment vitiating the interpretation of the Belgian authorities’ reply
240    In the first place, it is apparent from the Belgian authorities’ reply of 30 June 2020 that, although those authorities confirmed their participation in the meeting of 25 November 1994 at which the applicant was created, Belgium, however, did not consider itself to be a member of the applicant organisation. The Belgian authorities also stated that the applicant could, in their view, be considered as an international organisation which is why Belgium and the applicant had signed a headquarters agreement on 13 June 2012 which, however, did not grant the applicant all of the fiscal privileges usually granted to international organisations.
241    It is apparent from the statement of reasons for the contested decision that the Commission faithfully reproduced the content of the Belgian authorities’ reply while taking the view that that reply did not call into question the conclusion reached by that institution in subsection
A.7(b) of the final assessment, as summarised in paragraph 238 above.
242    In particular, the Commission considered that the recognition of the applicant’s status as an international organisation, in the form of a headquarters agreement concluded, inter alia, by Belgium, was not capable of establishing that that organisation constituted an international organisation, since the Belgian authorities had indicated to the Commission that Belgium was not a member of it.
243    In the second place, in support of its argument that Belgium had to be regarded as one of its members, the applicant relies on an analysis note from the Legal Service of the Belgian Ministry of Foreign Affairs dated 9 November 2009, annexed to the OLAF report.
244    However, although it is apparent from that note that Belgium then considered that the applicant had the character of an international organisation, that note does not say whether that State was a member of the applicant on 9 November 2009.
245    Moreover, the applicant complains that the Commission did not take sufficient account of the fact that Belgium had participated, first, in the meeting of 25 November 1994 at which it was established and, second, in the meetings of its steering committee until 2013.
246    Since the contested decision did not take effect until 16 December 2014, the participation of the Belgian authorities in the creation of the applicant on 25 November 1994 and in the meetings of its steering committee and then of its standing committee, until 2013, are not capable of establishing that Belgium was a member of that organisation on the date on which that decision took effect and, as the case may be, after that date.
247    In those circumstances, the Commission did not vitiate the contested decision by a manifest error of assessment in finding, in the light of the Belgian authorities’ reply of 30 June 2020, that, on the date on which the contested decision took effect, and subsequently, Belgium was not a member of the applicant.
248    Consequently, that second argument must be dismissed as unfounded and, accordingly, the second complaint must be dismissed in its entirety.
(3)    The third complaint, alleging errors in law and a manifest error of assessment on the part of the Commission in refusing to recognise that the European Union had become a member of the applicant
249    The third complaint consists, in essence, of three arguments. In support of the first argument, the applicant alleges an error in law in that the Commission considered that the European Union could not join an international organisation if that organisation did not include at least two States among its members. In support of the second argument, it alleges a manifest error of assessment in that the Commission considered that the European Union had never become one of its members. In support of the third argument, it alleges an error in law in that the Commission considered that the European Union could not be regarded as having validly acceded to the resolution of 25 November 1994, since it had not had recourse to the procedure for the conclusion of international agreements provided for at that time by the Treaties.
250    In that regard, it should be borne in mind that no provision of the Treaties requires the EU Courts to examine, in any event, the merits of the pleas in law or arguments raised in support of the claims brought before it. On the contrary, the EU Courts may, inter alia, for reasons relating to the efficient administration of justice, refrain from examining the merits of pleas which must be dismissed as inadmissible or inoperative (see, to that effect and by analogy, judgment of 29 September 2022, HIM v Commission, C‑500/21 P, not published, EU:C:2022:741, paragraphs 72 and 73).
251    In particular, it is clear from settled case-law that complaints directed against grounds included in the measure whose legality is contested purely for the sake of completeness cannot lead to the annulment of that measure and are therefore ineffective (see, by analogy, order of 28 September 2023, QI v Commission, C‑32/23 P, not published, EU:C:2023:722, paragraph 4 (View of the Advocate General, point 34 and the case-law cited)).
252    In the present case, in the context of the present complaint, the applicant claims to establish its status as an international organisation by relying on the fact that, on the date on which the contested decision took effect, it had at least two members, namely Austria, on the one hand, and the European Union, on the other, which had duly acceded to the resolution of 25 November 1994 and sat on its steering committee and then on its standing committee.
253    First, without it being necessary to examine the question whether the Commission duly acceded to the resolution of 25 November 1994, it is apparent from the parties’ corroborating statements that the Commission no longer sat on the applicant’s steering committee with effect from 20 May 2003.
254    In those circumstances, as is apparent from the examination of the first complaint in this part of the plea, the European Union cannot be regarded as a member of the applicant during the effective period of the contested decision.
255    Second, the applicant has neither established nor even claimed that, on the date on which the contested decision took effect, its members included another international organisation.
256    In that regard, although the resolution of 25 November 1994 and Article 5(1) of the applicant’s statute provide that the United Nations High Commissioner for Refugees (UNHCR) is an ex officio member of its steering committee, it is apparent from a letter from the Secretary General of the UNHCR dated 25 February 2014 that the UNHCR had not made any financial contribution to the projects implemented by the applicant from 2000 onwards, no longer participated in the meetings of that steering committee and no longer sat on that body as from 2010.
257    In those circumstances, since neither the European Union nor another international organisation, in particular the UNHCR, can be regarded as members of the applicant organisation as from 16 December 2014, the present complaint, even assuming that it is well founded, has no bearing on the lawfulness of the contested decision and must be dismissed. Accordingly, the first part of the present plea must also be dismissed in its entirety.
(c)    The second part, alleging errors in law vitiating the Commission’s refusal to classify the resolution of 25 November 1994 as an international agreement establishing an international organisation
258    The second part consists, in essence, of two complaints, alleging, first, errors in law in that the Commission refused to classify the resolution of 25 November 1994 as an international agreement and, second, an error of interpretation as to the intention of the signatories to that resolution to grant the applicant the status of an international organisation.
(1)    The first complaint, alleging errors in law resulting from the Commission’s refusal to classify the resolution of 25 November 1994 as an international agreement
259    The first complaint consists, in essence, of three arguments, alleging, first, that the Commission erred in law as regards the legally binding nature of the resolution of 25 November 1994, second, that the Commission erred in law as regards the requirement for that resolution to be signed by representatives with powers to that effect and, third, that the Commission erred in law as regards the requirement of instruments of signature or ratification of that resolution.
(i)    The first argument, alleging an error in law as regards the legally binding nature of the resolution of 25 November 1994
260    In support of that argument, the applicant submits, in essence, that the Commission vitiated the contested decision by an error in law by adopting the position of Austria, Finland and Sweden that the resolution of 25 November 1994 was a political declaration which was not legally binding, and therefore it could not be classified as an international agreement.
261    In that regard, it is apparent from the statement of reasons for the contested decision, in particular subsection
A.7(c) of the final assessment, that, in support of the conclusion that the resolution of 25 November 1994 was not an international agreement, the Commission relied on the position statements by Austria and Finland, dated 8 April and 23 January 2020 respectively.
262    Thus, it is apparent from Austria’s reply of 8 April 2020 that, although representatives of that State signed the resolution of 25 November 1994, the Austrian authorities consider that that resolution does not constitute an international agreement.
263    Moreover, in their reply of 23 January 2020, the Finnish authorities stated that, at the meeting of 25 November 1994, representatives of Finland had signed the resolution of the same date, taking the view that it was a political declaration that was not legally binding.
264    Furthermore, although it is not apparent from the contested decision that the Commission expressly relied on the position taken by the Swedish authorities on the question whether the resolution of 25 November 1994 constituted an international agreement, it follows from that State’s reply of 2 July 2020 that those authorities also consider, like the Austrian and Finnish authorities, that that resolution does not have the character of an international agreement.
265    As stated in paragraph 206 above, a document signed by States cannot constitute an international agreement if it does not contain any provision creating rights or obligations to which those States have consented. Thus, in the present case, it is for the Court to examine the content and scope of the resolution of 25 November 1994 in order to determine whether that document contains legally binding commitments for its signatories (see, to that effect and by analogy, judgment of 6 November 2008, Greece v Commission, C‑203/07 P, EU:C:2008:606, paragraph 56).
266    First, point 1 of the resolution of 25 November 1994 refers to the agreement of the representatives of the governments and international organisations participating in the meeting of the same date to formalise, as of that date, the establishment of the applicant, as outlined in preliminary meetings held in Geneva since July 1993 and in accordance with the minutes annexed to that resolution.
267    Second, point 2 of the resolution of 25 November 1994 confirmed the appointment of the applicant’s General Manager.
268    Third, point 3 of the resolution of 25 November 1994 provided for the establishment of a steering committee, the membership of which was open to governments and international organisations contributing financially or in kind on a regular basis to the budget or operations of the applicant and to which the UNHCR and the United Nations Protection Force (UNPROFOR) were ex officio members. In addition, that committee was competent, inter alia, to adopt its own rules by a two-thirds majority, fix guidelines, adopt the applicant’s budget and decide on its staffing requirements, appoint the General Manager by absolute majority, invite experts or representatives of other international organisations and review the need to continue the applicant’s activity at six-month intervals. Lastly, the GSG was to meet twice a year to review the operation and activities of the applicant.
269    Fourth, point 4 of the resolution of 25 November 1994 stated that the signature of that document did not imply any obligation to contribute to the applicant’s budget or operation, such obligation being assumed by the members of its steering committee.
270    Fifth, point 5 of the resolution of 25 November 1994 recorded the agreement of the participants in the meeting held on the same day that, once an overall framework for the reconstruction of Bosnia and Herzegovina was adopted, the applicant had to be integrated into that overall framework or gradually phase out its activities, in accordance with a decision to that effect by the GSG. In the meantime, the applicant’s activities had to be carried out in an integrated manner with those of the UNHCR and in close connection with those of UNPROFOR.
271    Thus, it is apparent from the wording of the resolution of 25 November 1994 that its signatories approved the applicant’s organisational rules, in particular by confirming its General Manager and deciding to set up a steering committee within it.
272    In particular, although the resolution of 25 November 1994 did not impose any obligation on its signatories to become members of the applicant, the fact remains that point 5 thereof laid down an obligation for the States that were members of the GSG to decide to integrate the applicant into the overall framework for the reconstruction of Bosnia and Herzegovina or to phase out its activities.
273    Thus, the resolution of 25 November 1994 did contain at least one legally binding commitment for its signatories, and therefore it cannot be regarded as a declaration the scope of which is exclusively political.
274    Consequently, the Commission vitiated the contested decision by an error in law by adopting the position of Austria and Finland which, as is clear from paragraph 264 above, also corresponded to Sweden’s position, according to which the resolution of 25 November 1994 constituted a political declaration which was not legally binding. Accordingly, that first argument must be upheld.
(ii) The second argument, alleging an error in law as regards the requirement for the resolution of 25 November 1994 to be signed by representatives with powers to that effect
275    In support of the second argument, the applicant submits that, formally, the Commission vitiated the contested decision by an error in law in the light of the rules laid down in Article 7(1) of the Vienna Convention, by requiring the States questioned about its legal status to produce the powers enabling the negotiators to adopt the resolution of 25 November 1994.
276    As a preliminary point, it should be borne in mind that the international law of treaties was consolidated, essentially, in the Vienna Convention (see, to that effect, judgment of 11 March 2015, Oberto and O’Leary, C‑464/13 and C‑465/13, EU:C:2015:163, paragraph 35).
277    In particular, Article 7(1) of the Vienna Convention, concerning full powers, provides that a person is to be considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if he produces appropriate full powers or it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
278    Nevertheless, by way of derogation from Article 7(1) of the Vienna Convention, paragraph 2
thereof exempts Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; representatives accredited by States to an international conference or to an international organisation or one of its organs, for the purpose of adopting the text of a treaty in that conference, organisation or organ, from the requirement to produce full powers.
279    Thus, where a document is signed by persons who do not have the necessary authority to engage the States to which they belong, in accordance with Article 7(1) of the Vienna Convention, such a document cannot be regarded as a legally binding international agreement, unless those persons are authorised to engage those States without having to produce full powers, pursuant to paragraph 2 of that article (see, to that effect, judgment of the International Tribunal for the Law of the Sea
of 14 March 2012, Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Reports 2012, p. 4, paragraphs 96 and 98).
280    Moreover, in accordance with Article 8 of the Vienna Convention, which the Commission cited in the fourth subsection of the first part of the final assessment, an act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 of that convention as authorised to represent a State for that purpose is without legal effect unless afterwards confirmed by that State.
281    In that regard, it follows from the commentaries of the International Law Commission on the Draft Articles on the Law of Treaties (Yearbook of the International Law Commission, 1966, Vol. II., p. 210 to 211), which, in accordance with the rules of interpretation of the treaties laid down in Articles 31 and 32 of the Vienna Convention, may be taken into account for the interpretation of Article 8 of that convention, that, notwithstanding the representative’s original lack of authority, the State may afterwards endorse his act and thereby establish its consent to be bound by the treaty, and that it will also be held to have done so by implication if it invokes the provisions of the treaty or otherwise acts in such a way as to appear to treat the act of its representative as effective.
282    In the first place, it is apparent from the replies of those States questioned by the Commission which had sent representatives to the meeting of 25 November 1994 that none of those States was able to produce the full powers that would have been granted to those representatives in order to authorise them, in accordance with Article 7(1) of the Vienna Convention, to sign the resolution of the same date.
283    Moreover, those replies do not indicate a practice of those States or other circumstances establishing their intention to consider the participants in the meeting of 25 November 1994 as their representatives for the purposes of signing the resolution of the same date and to dispense with full powers.
284    In the second place, it is true that it is apparent from Sweden’s reply of 2 July 2020 that the resolution of 25 November 1994 was subsequently signed by the Swedish Minister for Foreign Affairs, with the result that that State may be regarded as having benefited from the waiver of full powers provided for in Article 7(2)(a) of the Vienna Convention.
285    In the third place, however, it is apparent from the invitation to the meeting of 25 November 1994, sent by the UNHCR on 15 November 1994 to the Head of the Permanent Delegation of the Commission to the international organisations in Geneva, the testimony of a former Commission official dated 16 January 2020, which appears in Annex A.43 to the application, and a testimony of a former official of the Danish Government of 30 July 2019, which appears in Annex A.44 to the application, that the resolution of 25 November 1994 was negotiated and adopted by the representatives of the States sitting in the Humanitarian Issues Working Group of the International Conference on the Former Yugoslavia and at a meeting of that working group.
286    Thus, in the absence of the approval of the resolution of 25 November 1994 by all the representatives of the States accredited at the International Conference on the Former Yugoslavia, that resolution, adopted within the framework of a working group, cannot be regarded as a treaty adopted in the framework of that conference, in accordance with Article 7(2)(c) of the Vienna Convention.
287    In the fourth place, and in any event, it is apparent from the documents before the Court and, in particular, the replies of the States questioned by the Commission, that, in addition to Austria’s recognition of its membership, some of them participated, on 10 March 1995, in the adoption of its statute (‘the initial statute’), in particular France, whose representative signed that statute as Chairman of the steering committee, and Finland, and that some of those States have sat on its steering committee or its standing committee, in particular Denmark, France, the Netherlands, Sweden and Norway, with representatives of the latter two States having signed the applicant’s statutes adopted in 2008 and 2012 as chairmen of its steering committee, which became its standing committee.
288    Thus, by participating in the adoption of the applicant’s initial or subsequent statutes or by sitting on its steering committee or its standing committee, the States referred to in paragraph 287 above acted in such a way as to make the acts of signature of the resolution of 25 November 1994 by their representatives appear as performed and thus subsequently confirmed, within the meaning of Article 8 of the Vienna Convention, the signature of that resolution, the purpose of which was to establish the applicant.
289    In those circumstances, the Commission vitiated the contested decision by an error in law in refusing to classify the resolution of 25 November 1994 as an international agreement on account of the absence of full powers of the participants in the meeting of the same day, since the signature of that resolution was subsequently confirmed by at least two States. Accordingly, the present argument must be upheld.
(iii) The third argument, alleging errors in law as regards the requirement of instruments of signature or ratification of the resolution of 25 November 1994
290    In support of the third argument, the applicant submits that the Commission vitiated the contested decision by errors in law in the light of certain principles of public international law set out in the Vienna Convention, by requiring the States questioned about its legal status to provide proof of signature of the act establishing the applicant or produce an instrument of ratification, whereas it was apparent from the file available to the Commission that the resolution of 25 November 1994 had been duly approved and signed by its founding States and that, in practice, an international organisation is not always created by a formal agreement.
291    In the first place, it should be recalled that, under Article 11 of the Vienna Convention, the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.
292    In particular, Article 12(1) of the Vienna Convention provides that the consent of a State to be bound by a treaty is expressed by the signature of its representative when the treaty provides that signature is to have that effect; it is otherwise established that the negotiating States were agreed that signature should have that effect; or the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.
293    Moreover, Article 12(2) of the Vienna Convention provides that, for the purposes of paragraph 1 of that article, the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed and the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty.
294    In the present case, it is apparent from paragraph 6 of the resolution of 25 November 1994 and the minutes of 29 November 1994 that the participants in the meeting of 25 November 1994 were asked to sign that resolution.
295    Thus, in so far as the signature of an agreement is, under the Vienna Convention, one of the methods of expressing the consent of a State to be bound by that agreement, the Commission did not err in law, in the light of Article 12 of that convention, by questioning the States alleged to be members of the applicant on that matter and by requesting the production of any instruments of signature.
296    In the second place, Article 14(1) of the Vienna Convention provides that the consent of a State to be bound by a treaty is expressed by ratification when the treaty provides for such consent to be expressed by means of ratification; it is otherwise established that the negotiating States were agreed that ratification should be required; the representative of the State has signed the treaty subject to ratification; or the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.
297    In the present case, it is not apparent either from the resolution of 25 November 1994 or from the minutes of 29 November 1994 that the participants in the meeting of 25 November 1994 intended to ratify that resolution.
298    However, such an intention to proceed by ratification could have been expressed by the representatives of the States and international organisations concerned during the negotiation or at the time of signature, in accordance with the situations provided for in Article 14(1)(b) to (d) of the Vienna Convention.
299    Consequently, the applicant is also not justified in criticising the Commission for having questioned the States which it presumed to be its members about the existence of an instrument of ratification, in order to establish the existence of consent on their part to be bound by the resolution of 25 November 1994.
300    Accordingly, that third argument must be dismissed as unfounded.
(iv) The effect of the merits of the first and second arguments of the present complaint on the lawfulness of the contested decision
301    It follows from paragraphs 274 and 289 above that the Commission vitiated the contested decision by errors in law in finding that the resolution of 25 November 1994 did not constitute an international agreement.
302    However, those errors in law remain, at this stage of the examination of the applicant’s arguments, irrelevant to the lawfulness of the contested decision, since they do not affect the condition laid down in the EU Financial Regulations that the applicant, in order to be eligible to implement the EU budget using the indirect management method provided for the benefit of international organisations, must have been founded by an international agreement the purpose of which was to establish it as an international organisation.
303    Therefore, the illegalities found in paragraphs 274 and 289 above are not, by themselves, such as to entail the annulment of the contested decision.
(2)    The second complaint, alleging an error of interpretation as to the intention of the signatories to the resolution of 25 November 1994 to grant the applicant the status of an international organisation
304    In support of the present complaint, the applicant submits, in essence, that the Commission vitiated the contested decision by an error in law relating to the content of the resolution of 25 November 1994, since it considered that the purpose of that act was not to establish an international organisation, but a temporary joint co-financing mechanism.
305    In that regard, it should be recalled that, pursuant to Article 31 of the Vienna Convention, which expresses general customary international law, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of that treaty in their context and in the light of its object and purpose (see judgment of 11 March 2015, Oberto and O’Leary, C‑464/13 and C‑465/13, EU:C:2015:163, paragraph 37 and the case-law cited).
306    In the first place, it must be noted that the resolution of 25 November 1994 does not classify the applicant as an international organisation or define its legal status.
307    In the second place, it must also be noted that the resolution of 25 November 1994 did not even grant the applicant legal personality by means of a clause conferring on it the capacity to conclude agreements or to bring legal proceedings.
308    In the third place, the resolution of 25 November 1994 also did not provide that the applicant could enjoy immunities in the performance of its activities, whereas, in accordance with the case-law cited in paragraphs 209 and 210 above, international organisations enjoy, in the performance of their tasks, immunities which are provided for in their founding treaties.
309    In the fourth place, it is apparent from the wording of the resolution of 25 November 1994 that its signatories did not intend, by founding the applicant, to establish an organisation endowed with all the resources necessary for its operation and the best possible guarantees of stability, continuity and effectiveness for the performance of its tasks, but an optional mechanism available to the parties which each may use or not, as it pleases.
310    First, as regards the stability and continuity of the applicant’s tasks, point 3 of the resolution of 25 November 1994 provided that the steering committee was to review every six months the need to continue the applicant’s tasks, whereas, in accordance with point 5 thereof, the States Parties to the resolution of 25 November 1994 had to decide either to integrate it into the overall framework for the reconstruction of Bosnia and Herzegovina or to phase out its activities.
311    Second, as regards the effectiveness of the applicant’s tasks, although point 3 of the resolution of 25 November 1994 refers to the regular payment of contributions to the applicant by the States and international organisations party to that resolution, that point does not require those States and organisations to make compulsory contributions to the applicant’s budget. On the contrary, the resolution expressly provides that contributions, be they financial or in kind, are optional for members of the applicant.
312    Third, the resolution of 25 November 1994 did not provide for the transfer of mandatory powers by the States and organisations party to that resolution to the applicant; on the contrary, those States and organisations remain free to accede to it, to depart from it unilaterally as they see fit and to put other channels of communication in its place.
313    In the fifth place, the interpretation of the wording and purpose of the resolution of 25 November 1994, from which it is apparent that its authors did not intend to establish an international organisation when they founded the applicant, is corroborated by the context in which that resolution was adopted, as is apparent from several documents in the file.
314    First, it is apparent from the minutes of 29 November 1994 that, at the meeting of the Humanitarian Issues Working Group of the International Conference on the Former Yugoslavia on 25 November 1994, a number of States, in particular Germany, Finland, Norway and Russia, and the European Community Humanitarian Office (ECHO), expressed reservations about an initiative which would have led to the establishment of a new institutionalised body and insisted on the temporary nature of the applicant’s activity. Moreover, none of the participants in that meeting described the applicant as an international organisation.
315    Second, the applicant relies on a document entitled ‘Terms of reference of IMG-IBH’, which the Court understands to be an annex to the resolution of 25 November 1994. In particular, that document lists the applicant’s tasks, which consisted, in the territory of Bosnia and Herzegovina and in the fields of energy, public services, shelter and housing, of gathering information, assessing the basic needs of the population, determining the priority sectors requiring prompt international assistance, identifying and elaborating programmes or projects which may be funded by the international community and assisting States and international institutions with a view to funding programmes or projects.
316    However, the terms of reference of IMG-IBH do not determine the legal status of the applicant or confer on it the power to conclude international agreements.
317    Third, the attestation of 14 December 1994 drawn up by the coordinator of the UNHCR special operation in the former Yugoslavia, who had chaired the meeting of 25 November 1994 during which the resolution of the same day had been adopted, merely refers to the formal creation of the applicant at that meeting and does not specify whether that initiative was intended to give the applicant legal personality and, where appropriate, confer on it the status of an international organisation.
318    Fourth, it is apparent from the invitation to the meeting of 25 November 1994 that the purpose of that meeting was to examine the restructuring of the applicant’s original entity and its future status, and not to create an international organisation.
319    Consequently, the Commission did not vitiate the contested decision by an error in law in finding that the resolution of 25 November 1994 had neither the purpose nor the effect of conferring on the applicant the status of an international organisation, with the result that the present complaint must be rejected as unfounded, as must, consequently, the second part of the fourth plea in law in its entirety.
(d)    The third part, alleging errors in law as regards the subsequent practice of the signatories to the resolution of 25 November 1994 and the recognition of the status of international organisation by the European Union and certain States
320    The third part of the fourth plea in law consists, in essence, of three complaints, alleging, first, an error in law in that the Commission refused to recognise the applicant’s status as an international organisation notwithstanding the subsequent practice of its members, secondly, an error in law in that the Commission did not take account of the recognition of the applicant’s status as an international organisation by the European Union and certain States and, third, an error in law in that the Commission failed to take account of the fact that its members had not dissolved it and the fact that it complied with the principle of speciality.
(1)    The first complaint, alleging an error in law as regards the subsequent practice of the signatories to the resolution of 25 November 1994
321    In support of that complaint, the applicant submits, in essence, that, even if it had not been established as an international organisation by the instrument of constitution, the Commission erred in law by refusing to accept that it had gradually acquired the status of a permanent international organisation, having regard to the subsequent practice of the signatories to the resolution of 25 November 1994 and, in particular, of its members. It states that its initial statute was amended in 2008 and 2012 in order to provide it with the resources and privileges of an international organisation, which were appropriate for the continuation of its work and the conduct of its activities.
322    As a preliminary point, it must be recalled that, in the contested decision, the Commission considered that it was apparent from the replies of the States consulted that subsequent practice, following the adoption of the resolution of 25 November 1994, did not demonstrate a wide and clear recognition of the applicant’s status as an international organisation on the part of the States and the international organisations which were members of it.
323    In that regard, it must be borne in mind that, in accordance with Article 31(3)(a) and (b) of the Vienna Convention, for the purposes of the interpretation of a treaty, account must be taken, inter alia and together with the context thereof, of any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions and any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (see, to that effect, judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 120).
324    In particular, it follows from the case-law that instruments cannot be regarded as a subsequent agreement or subsequent practice establishing the agreement of the parties regarding the interpretation of a treaty, within the meaning of Article 31(3)(a) and (b) of the Vienna Convention, if those instruments were adopted without the support of all the States parties to that treaty (see, to that effect, judgment of the International Court of Justice of 31 March 2014, Whaling in the Antarctic (Australia v. Japan; New Zealand intervening), I.C.J. Reports 2014, p. 226, paragraph 83).
325    Moreover, under Article 32 of the Vienna Convention, recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31 of that convention, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.
326    In such a case, in accordance with the conclusions of the International Law Commission on subsequent agreements and subsequent practice annexed to General Assembly Resolution 73/202 of 20 December 2018 (text adopted by the International Law Commission at its seventieth session, in 2018, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/73/10)), a subsequent practice consists of conduct by one or more parties in the application of the treaty, after its conclusion.
327    It is in the light of those provisions and principles that the Court must examine whether, in support of the present complaint, the applicant is entitled to rely on the subsequent practice of its members, as set out in its initial statute and the amendments thereto in 2008 and 2012.
328    It follows from the examination of the second complaint in the second part of the fourth plea in law that, in so far as they did not establish the applicant as an international organisation, the provisions of the resolution of 25 November 1994 are devoid of any obscurity or ambiguity and do not lead to a manifestly absurd or unreasonable interpretation, in accordance with Article 32 of the Vienna Convention.
329    Thus, demonstrating that subsequent agreements or a subsequent practice of the signatories to the resolution of 24 November 1994 have altered the interpretation of the provisions of that resolution in order to confer on the applicant the status of an international organisation is subject to the condition that all the signatories to that resolution or, at least, all of the applicant’s members have approved such an amendment, in accordance with the case-law cited in paragraph 324 above.
330    In the present case, it is true that, first, the applicant’s initial statute conferred legal personality on it and provided that some of its staff would benefit from the system of immunities enjoyed by the UNHCR and that, second, Article 1 of its 2012 statute classified it as an international organisation.
331    However, the applicant has not established that its initial statute and its 2012 statute reflected the intention of all the signatories to the resolution of 25 November 1994 or, at least, of its members, to confer on it the status of an international organisation, with the result that the Commission should have recognised those instruments as constituting subsequent agreements or subsequent practice within the meaning of Article 31(3)(a) and (b) of the Vienna Convention.
332    On the contrary, in the first place, as regards the initial statute, it is apparent from the minutes of the meeting of the steering committee on 13 February 1995, which was attended by representatives of Denmark, Germany, France, Italy, Finland, Sweden, the United Kingdom, Norway and the European Community, under the aegis of the UNHCR, with a view to drawing up that statute, that, following a question from Finland, a UNHCR official emphasised that the applicant had been created to carry out a temporary task, that there were no plans to create a fully- fledged international organisation and that the applicant’s statute did not have the same legally binding effect, on the States which approved it, as would have resulted from the implementation of a procedure for ratification, by all the States concerned, of the act establishing it.
333    In addition, it is apparent from a letter from the Finnish authorities dated 29 April 2014 that, at the steering committee meeting on 10 March 1995, during which the initial statute was approved by the required two-thirds majority of the members of that committee, the Finnish representative did not sign that statute because of doubts as to the legal nature of that document and that, as a result of the assurances given by the UNHCR official referred to in paragraph 332 above, Finland finally signed that statute at the steering committee meeting on 19 June 1995 by making a declaration to the effect that it considered the applicant’s statute to be political in nature.
334    Thus, having regard to the positions taken by the UNHCR and Finland when the applicant’s initial statute was adopted, it is not clear from the circumstances in which that statute was adopted that it reflects the intention of all the signatories to the resolution of 25 November 1994 or of the applicant’s members, to confer on it the status of an international organisation.
335    In the second place, as regards the applicant’s statute adopted in 2012, the applicant maintained at the hearing that it had been signed by France, Italy, Finland, Sweden and Norway.
336    First, it must be observed that, even if the applicant’s claims are recognised as established, it follows that the 2012 statute was not adopted with the support of all the signatories to the resolution of 25 November 1994.
337    Second, it is also not apparent from the documents in the file that, when the applicant’s statute was adopted in 2012, the applicant’s sole members were France, Italy, Finland, Sweden and Norway, and therefore that statute should be regarded as reflecting the unanimous agreement of the applicant’s members on that date to recognise it as an international organisation.
338    Third, even if, when the 2012 statute was adopted, the applicant’s only members were the five States referred to in paragraph 335 above, it is apparent from the positions adopted by those States, in response to OLAF’s investigation and to the consultation initiated by the Commission with a view to the adoption of the contested decision, that they contradict the clause in the 2012 statute conferring on the applicant the status of an international organisation.
339    First, it is apparent from the letter sent by the Swedish authorities to OLAF on 23 June 2014 and from the reply of those authorities to the Commission dated 2 July 2020 that Sweden considers that the applicant is not an international organisation, even though it is common ground that the Swedish Ambassador in Belgrade signed the applicant’s 2012 statute as Chairman of its steering committee, which became the standing committee.
340    Second, it is apparent from the replies given by France, Italy, Finland and Norway in the context of the OLAF investigation and their replies to the Commission dated 22 July, 13 March and 14 January 2020 and 20 December 2019 respectively that those States consider that the applicant is not an international organisation.
341    Thus, having regard to the positions adopted by France, Italy, Finland, Sweden and Norway, it is not apparent from the documents before the Court that the clause in the 2012 statute, according to which the applicant is an international organisation, reflects the clear and unequivocal intention of those States to confer such status on it.
342    In the third place, it should be noted that, even if the applicant’s initial statute and its 2012 statute were adopted with the support of all the signatories to the resolution of 25 November 1994 or, at least, all its members, it is apparent from the evolution of that statute that, although, when new statutes were adopted in 2008 and 2012, those members of the applicant intended to provide it with a degree of stability and to ensure the continuity of its activities, they did not, however, change its nature as an optional joint co-financing mechanism which each of them could use as it pleased.
343    In particular, when the 2008 and 2012 statutes were adopted, the applicant’s members did not change the way in which the applicant was funded, on the basis of voluntary contributions, nor did they entrust it with mandatory powers, with the result that they remain free to withdraw from it unilaterally as they see fit and to put other channels of communication in its place.
344    In that context, it must be held that the meaning of the clauses in the initial statute relating to the applicant’s immunities and legal personality, and the clause in the 2012 statute, in accordance with which the applicant is an international organisation, remains ambiguous within the meaning of Article 32 of the Vienna Convention.
345    Moreover, it is apparent from the replies of the States consulted by the Commission that, among the applicant’s members, only Austria considers that the applicant may be recognised as an international organisation.
346    Consequently, the Commission did not err in law in finding, in the contested decision, that subsequent practice, following the adoption of the resolution of 25 November 1994, and then the adoption of the initial statute and the 2012 statute, did not demonstrate a sufficiently wide and clear recognition of the applicant’s status as an international organisation, both on the part of the signatories to that resolution and on the part of the applicant’s members.
347    For those reasons, the present complaint must be dismissed as unfounded.
(2)    The second complaint, alleging errors in law in that the Commission failed to take account of the recognition of the applicant’s status as an international organisation by the European Union and certain States
348    The present complaint comprises two arguments, alleging, first, infringement of Articles 27 and 46 of the Vienna Convention and, second, an error in law in that the Commission failed to take into account the headquarters agreements concluded by the applicant.
(i)    The first argument, alleging that the Commission infringed Articles 27 and 46 of the Vienna Convention by no longer recognising the applicant’s status as an international organisation
349    In support of the first argument, the applicant submits that the conclusion of agreements between itself and the Commission under joint or indirect management necessarily entailed an obligation on the part of that institution to recognise its status as an international organisation pursuant to Articles 27 and 46 of the Vienna Convention.
350    In that regard, in the first place, it must be recalled that, in accordance with Article 1 and Article 2(1)(a) thereof, the Vienna Convention governs international agreements concluded between States in written form and governed by international law. Thus, under Article 3 of that convention, it does not apply to international agreements concluded between States and other subjects of international law, such as the European Union.
351    Consequently, the applicant cannot reasonably criticise the Commission, in support of the present argument, of having infringed Articles 27 and 46 of the Vienna Convention, the provisions of which are not directly applicable to the European Union.
352    In the second place, even if the applicant intended to rely on the principles of public international law set out in Articles 27 and 46 of the Vienna Convention, in particular Article 27(2) and (3) and Article 46(2) and (3) of the Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organisations or between International Organisations (Official Records of the United Nations Conference on the Law of Treaties between States and International Organisations or between International Organisations, Vol. II, p. 91), it follows from those principles, first, that an international organisation party to a treaty may not invoke the rules of the organisation as justification for its failure to perform the treaty and, second, that an international organisation may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organisation regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance.
353    First, since the resolution of 25 November 1994 did not oblige its signatories to become a member of the applicant or describe it as an international organisation, the Commission cannot be criticised, by adopting the contested decision, for not having implemented that resolution, even if it had duly approved or signed it.
354    Moreover, it is apparent from the consideration of the first complaint in this part that the applicant is not entitled to rely on the status of international organisation by virtue of subsequent practice following the resolution of 25 November 1994 or the adoption of its statute.
355    In any event, it follows from paragraph 253 above that, since the Commission no longer sat on the applicant’s steering committee with effect from 20 May 2003, the European Union was no longer a member of the applicant during the effective period of the contested decision.
356    Thus, even if the Commission had duly become a member of the applicant in 1994 or at a later date, it was, on the date on which the contested decision took effect, relieved of any obligation to recognise it as an international organisation as a result of any subsequent practice following the resolution of 25 November 1994 or the adoption of its statute.
357    Second, it is not apparent from the statement of reasons for the contested decision that, even though the Commission denies having duly acceded to the resolution of 25 November 1994, it adopted that decision on the ground that its consent to be bound by that resolution was expressed in breach of the EU rules regarding competence to conclude international treaties.
358    In particular, it is not apparent from the statement of reasons for the contested decision that it is based on the principles set out in Article 46 of the Vienna Convention and Article 46(2) and (3) of the Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organisations or between International Organisations.
359    Consequently, the present argument must be dismissed.
(ii) The second argument, alleging an error in law in that the Commission did not take into account the headquarters agreements concluded by the applicant
360    In support of the second argument, the applicant submits that the Commission vitiated the contested decision by an error in law in refusing to take into account the replies of Belgium and Austria in so far as those States refer to the headquarters agreements which it had concluded, since such agreements express the recognition of its status as an international organisation by the States that were signatories to those agreements, whether or not they are members of that organisation. It thus relies on the signing of headquarters agreements with Belgium, Bosnia and Herzegovina, North Macedonia, Myanmar/Burma and Serbia.
361    In that regard, it is true that, in its reply to the Commission of 8 April 2020, Austria stated that subsequent practice following the adoption of the resolution of 25 November 1994 and the applicant’s statute, in particular the conclusion of headquarters agreements, appeared to show that the applicant had obtained international legal personality to the extent necessary to fulfil its functions. Moreover, in its reply to the Commission of 30 June 2020, Belgium referred to the headquarters agreement which it had concluded with the applicant.
362    Nevertheless, it is apparent from the statement of reasons for the contested decision that the Commission considered that the recognition of the applicant’s status as an international organisation by States which are not members of that entity was not sufficient to establish that it met the requirements of the definition of international organisations laid down by international law, in particular by the principles set out in the Draft Articles.
363    In that regard, it follows from paragraphs 204 to 212 and 323 to 325 above that recognition of the status of international organisation results from the convergence of intent on the part of the States and, as the case may be, the international organisations which are parties to the agreement establishing the organisation concerned, that intention having to be clear from that establishment agreement or subsequent agreements or from practice subsequent to that establishment agreement, provided that those subsequent agreements and that subsequent practice express such recognition by all the parties to the establishment agreement.
364    Thus, the fact that States which have not acceded to the agreement forming an organisation and which are not, or are no longer, members of it consider it to be an international organisation cannot entail any obligation for the Commission to recognise that organisation as having the status of an international organisation for the purpose, inter alia, of authorising it to implement the EU budget under indirect management.
365    Consequently, the Commission did not err in law by not taking into account, in adopting the contested decision, the headquarters agreements concluded by the applicant with the States referred to in paragraph 360 above, and therefore the present argument must be dismissed as unfounded.
(3)    The third complaint, alleging an error in law in that the Commission failed to take account of the fact that its members had not dissolved it and the fact that it complied with the principle of speciality
366    In support of the third complaint, the applicant submits that the Commission vitiated the contested decision by an error in law by failing to take into account, first, the fact that the States which had established it had never dissolved it, despite its provisional nature at the outset, and, secondly, the fact that it complied with the principle of speciality.
367    In that regard, it is true that the signatories to the resolution of 25 November 1994 which became members of the applicant intended, when the 2008 and 2012 statutes were adopted, to provide it with a degree of stability and to entrust it with specialised tasks in the fields of reconstruction and development beyond the territory of Bosnia and Herzegovina.
368    However, it follows from the consideration of the second complaint in the second part of the present plea and the first complaint in this part that neither the signatories to the resolution of 25 November 1994 nor the applicant’s members demonstrated an intention unanimously, or at least by a majority, to confer on it the status of an international organisation.
369    The fact that the applicant’s members did not dissolve it and the fact that it complied with the principle of speciality are not sufficient to establish such an intention and therefore have no bearing on the lawfulness of the contested decision.
370    Consequently, the present complaint must be dismissed, as must, accordingly, the third part, and the fourth plea in law must be dismissed in its entirety.
5.      The second and third parts of the second plea in law, alleging breach, respectively, of the duty of diligence and the obligation of impartiality
(a)    The second part of the second plea in law, alleging breach of the duty of diligence
371    In support of the second part of the second plea, the applicant raises, in essence, seven complaints, alleging, first, errors made by the Commission in identifying the States which had to be questioned about its legal status, second, errors made by the Commission as regards the scope of the headquarters agreement it had concluded with the Belgian authorities, third, errors made by the Commission as to the definition of ‘international organisation’, fourth, errors made by the Commission as a result of its failure to take into account the documents already in its possession, fifth, errors made by the Commission on account of the incomplete nature of the questionnaire it sent to the States which were allegedly its members, sixth, errors made by the Commission on account of the irrelevance of the latter’s request for the States questioned to produce its duly signed establishment agreement and, seventh, errors made by the Commission on account of the lack of a second consultation of the States questioned by it after it had received the applicant’s observations dated 5 and 30 March 2021.
372    As a preliminary point, it should be borne in mind that the duty of diligence, which is inherent in the right to good administration enshrined in Article 41 of the Charter and which applies generally to the action of the EU administration in its relations with the public, requires the EU institutions to act with care and caution by examining all the relevant aspects of the individual case (see, to that effect, judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 168 and the case-law cited).
373    Thus, in the light of the content of the duty of diligence, pleas alleging breach of that duty frequently overlap with pleas alleging manifest error of assessment (judgment of 16 June 2022, SGL Carbon and Others v Commission, C‑65/21 P and C‑73/21 P to C‑75/21 P, EU:C:2022:470, paragraph 32).
374    The EU institutions are under the duty of diligence when exercising their powers of assessment. Accordingly, where a party claims that the institution competent in the matter has committed a manifest error of assessment, the EU judicature must verify whether that institution has examined, carefully and impartially, all the relevant facts of the individual case (see, to that effect, judgment of 16 June 2022, SGL Carbon and Others v Commission, C‑65/21 P and C‑73/21 P to C‑75/21 P, EU:C:2022:470, paragraphs 30 and 31 and the case-law cited).
375    In the present case, it must be held that, in the context of the fourth plea in law, the applicant criticised the Commission for having committed several manifest errors of assessment and that that argument overlaps with that developed in support of the present part.
376    Since it follows from paragraph 370 above that the fourth plea in law, alleging, inter alia, several manifest errors of assessment, must be rejected as unfounded, the applicant is not, consequently, justified in criticising the Commission for not having examined its situation with care and caution and thus for having breached the duty of diligence when adopting the contested decision.
377    In any event, in respect of the first complaint, alleging that the Commission, first, wrongly questioned Türkiye about the applicant’s legal status and, second, did not question Bosnia and Herzegovina, North Macedonia, Myanmar/Burma and Serbia, it must be recalled that, following the delivery of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), the applicant refused to disclose to the Commission the identity of its members.
378    In that context, the Commission cannot be regarded as having failed in its duty of diligence by questioning the States which the applicant had stated, on its own website on 26 November 2019, were its members, and which included Türkiye.
379    As regards Bosnia and Herzegovina, North Macedonia, Myanmar/Burma and Serbia, in respect of which it is not disputed that they are not members of the applicant, it follows from the consideration of the second argument in the second complaint in the third part of the fourth plea in law that any position taken by those States on the question of whether the applicant was an international organisation are irrelevant to the adoption of the contested decision.
380    As regards the second complaint, alleging an error on the part of the Commission as to the scope of the headquarters agreement concluded between the Belgian authorities and the applicant, it also follows from the consideration of the second argument in the second complaint in the third part of the fourth plea in law that the scope of that agreement is irrelevant to the adoption of the contested decision, since Belgium was no longer a member of the applicant on the date on which the contested decision took effect, as is apparent from the consideration of the second argument in the second complaint in the first part of the fourth plea in law.
381    As regards the third complaint, alleging that the Commission erred in its definition of the concept of ‘international organisation’, which differs from that provided for in the guidance, it follows from the examination of the fourth plea in law that the Commission did not vitiate the contested decision by an error in law by relying on the definition of that concept resulting, inter alia, from the Vienna Convention and the Draft Articles.
382    Moreover, it is not apparent from the guidance that the definition of the concept of ‘international organisation’ contained in that document is different from that on which the Commission relied in order to adopt the contested decision.
383    As regards the fourth complaint, alleging that the Commission failed to take into account documents already in its possession, it follows from the examination of the fourth plea in law that the various documents produced by the applicant, the majority of which are annexed to the OLAF investigation report, do not demonstrate a unanimous or majority intention of the signatories to the resolution of 25 November 1994 or, at the very least, of its members to confer on it the status of an international organisation.
384    As regards the fifth complaint, alleging that the questionnaire sent by the Commission to the States which were allegedly members of the applicant was incomplete, it is apparent from that questionnaire that the Commission did not only ask the States concerned whether they had signed an international or intergovernmental agreement establishing the applicant as an international organisation, but also whether they considered that it met the conditions to be classified as an international organisation within the meaning of the EU Financial Regulations, and therefore, having regard to the definition of the concept of ‘international organisation’ recalled in paragraphs 197 to 212 above, that complaint must be rejected as unfounded.
385    As regards the sixth complaint, alleging that the Commission’s request that the States questioned produce the duly signed agreement establishing the applicant is irrelevant, this must also be dismissed as unfounded, as is clear from the examination of the third argument in the first complaint in the second part of the fourth plea in law.
386    As regards the seventh complaint, alleging that there was no second consultation of the States questioned by the Commission after it had received the applicant’s observations of 5 and 30 March 2021, it follows from the consideration of the fourth plea in law that those observations, which were repeated in the application, were not capable of invalidating the Commission’s conclusion that the applicant was not an international organisation.
387    Consequently, the Commission did not breach the duty of diligence by refraining from consulting the States which it had questioned for a second time after it had received the applicant’s observations, and therefore that complaint is unfounded.
388    Therefore, the second part of the third plea in law must be rejected as unfounded.
(b)    The third part, alleging breach of the obligation of impartiality
389    In support of the third part, the applicant puts forward, in essence, four complaints, alleging that the Commission breached the obligation of impartiality, viewed objectively, first, by asking the States which it had chosen to question questions that were not relevant, useful or in accordance with the law or the documents in the file, second, by giving the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), a scope which it clearly did not have and by claiming that it was under an obligation to re-assess the applicant’s legal status so as to guide the replies of those States, third, by making inaccurate statements about the applicant and, fourth, by exerting pressure on those States in order to obtain replies drafted in such a way as to better support its position.
390    In that regard, it must be recalled that it is incumbent upon the institutions to comply with both components of the requirement of impartiality, which are, on the one hand, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice and, on the other, objective impartiality, under which there must be sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned (see order of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 199 and the case-law cited).
391    In particular, where an applicant claims infringement of objective impartiality, it follows from the case-law that, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality, rather it is sufficient for a legitimate doubt to arise which cannot be dispelled (see, to that effect, judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 37).
392    In the first place, as regards the first complaint, alleging that the Commission asked the States questioned questions that were not useful, irrelevant and not in accordance with the law or the documents in the file, it is not apparent from the documents before the Court that, having regard to the definition of the concept of ‘international organisation’ recalled in paragraphs 197
to 212 above, the questions put by the Commission to the States which it had chosen to question concerning a possible signature or ratification of the applicant’s establishment agreement and the existence of any full powers granted to the signatories of that agreement were not useful, irrelevant and not in accordance with the law or the documents in the file.
393    Moreover, as regards the other means of expressing the consent of the States to be bound by the resolution of 25 November 1994, it is true that the letters sent to the States questioned by the Commission do not mention any means other than the signature and ratification of that instrument.
394    However, that fact is not such as to demonstrate that the consultation procedure undertaken by the Commission with the States which it believed to be or to have been members of the applicant did not ensure sufficient guarantees to exclude any legitimate doubt as to possible prejudice or bias on its part.
395    In the letters sent to those States, the Commission asked a general question as to whether they considered themselves to be members of the applicant. Thus, it was open to the States questioned, in the absence of signature or ratification of the agreement forming the applicant, to state that they had otherwise consented to that agreement.
396    Moreover, it follows from the definition of the concept of ‘international organisation’, recalled in paragraphs 197
to 212 above, and from the consideration of the second argument of the second complaint in the third part of the fourth plea in law that the applicant is not justified in criticising the Commission for not having asked the States which it had questioned whether they considered, treated or classified it as an international organisation, irrespective of their status as a member of that organisation.
397    Consequently, the first complaint in the third part of the second plea in law must be dismissed as unfounded.
398    In the second place, the second complaint, alleging that the Commission gave the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), a scope which it does not have, must be dismissed as unfounded as a consequence of the rejection of the first part of the first plea in law, alleging infringement of Article 266 TFEU and breach of the principle of res judicata attaching to that judgment, and of the second complaint in the second part of that first plea in law, alleging breach of the principle of non-retroactivity of EU measures.
399    It follows from paragraphs 105, 120 and 149 above that the Commission did not err in its interpretation of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), when it took the view that the proper implementation of that judgment required it to re-assess retroactively the applicant’s legal status.
400    In the third place, in support of the third complaint, alleging that the Commission vitiated its correspondence with the States it questioned by a number of inaccuracies, first, the applicant complains that the Commission stated, both in the letters of 26 November 2019 addressed to those States and in the reminder letters of 11 March 2020, that it was obliged to carry out an assessment of its status in accordance with Article 266 TFEU.
401    In view of the rejection of the first complaint in the first part of the first plea in law, alleging infringement of Article 266 TFEU, the applicant is also not justified in claiming that that statement is incorrect.
402    Second, the applicant complains that the Commission stated, in its letters of 26 November 2019, that it had refused to provide it with its establishment agreement.
403    By letter of 6 May 2019, the Commission had asked the applicant to send it, inter alia, ‘a certified copy of the (signed) international agreement establishing IMG as an international organisation’ and ‘any document, which is not yet in [its] possession …, confirming the status of IMG as an international organisation, and the identity of [its] current or past members’.
404    In its reply of 25 June 2019, the applicant disputed the very principle of the Commission’s request on the ground that its previous recognition as an international organisation, in particular by the European Union, could not be called into question under the rules of public international law. It therefore did not respond to that request.
405    Moreover, the applicant did not reply to the Commission’s reminder letter of 18 July 2019.
406    Consequently, the statement that the applicant refused to provide the Commission with the agreement by which it was created is not inaccurate.
407    Furthermore, although the applicant maintains that that refusal to cooperate was justified by the fact that the Commission already had its establishment documents, such justification does not appear in its reply of 25 June 2019.
408    Consequently, the Commission was free to inform the States which it had chosen to question that the applicant had refused to provide it with its establishment agreement, without that factor being such as to demonstrate that that consultation procedure did not ensure sufficient guarantees to exclude any legitimate doubt as to possible prejudice or bias on its part.
409    Third, the applicant criticises the Commission for having stated, inter alia in electronic exchanges with the Turkish and Italian authorities, that, by its order of 9 September 2020, IMG v Commission (T‑645/19, not published, EU:T:2020:388), the Court had declared that it had correctly enforced the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78).
410    In that regard, in paragraph 69 of the order of 9 September 2020, IMG v Commission (T‑645/19, not published, EU:T:2020:388), the Court held, in essence, that the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), cannot be interpreted as meaning that, in order to comply with that judgment, the Commission could not carry out a fresh examination of the applicant’s status as an international organisation, after gathering the information it considered necessary, but, on the contrary, as meaning that recourse to a fresh examination may be regarded as the necessary consequence of that judgment.
411    In addition, by the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722), the Court of Justice dismissed the appeal brought by the applicant against the order of 9 September 2020, IMG v Commission (T‑645/19, not published, EU:T:2020:388).
412    Consequently, the statement, in various reminders from the Commission, to the effect that the General Court held that the Commission had complied correctly with the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), does not appear to be inaccurate, and therefore the third complaint must be rejected as unfounded.
413    In the fourth place, in support of the fourth complaint, alleging that the Commission exerted pressure on some of the States questioned in order to obtain replies drafted in such a way as to better support its conclusion, the applicant relies on exchanges between the Commission and the Danish authorities on 5 and 12 June 2020 by which the Commission asked those authorities to confirm whether Denmark had signed an international agreement establishing the applicant as an international organisation, since the Commission feared that the first reply from those authorities would be considered insufficiently conclusive by the General Court or the Court of Justice in the event of an appeal.
414    In that regard, it is apparent from the letter of 4 June 2020 from the Permanent Representative of Denmark to the European Union that, in response to the question whether that State had signed an international agreement establishing the applicant as an international organisation, the Danish authorities first replied that they had not been able to find a signed document to that effect. Then, following the electronic exchanges between the Commission and those authorities on 5 and 12 June 2020, referred to in paragraph 413 above, the Permanent Representation of Denmark to the European Union sent, on 18 June 2020, a new amended letter as requested by the Commission.
415    The circumstances described in paragraph 414 above demonstrate the Commission’s concern to obtain a clear response from the Danish authorities to the question whether Denmark had signed an international agreement establishing the applicant as an international organisation. Consequently, they do not give rise to any legitimate doubt as to the existence of possible bias on the part of the Commission as to the answer to be given in respect of the applicant’s status.
416    Consequently, the third complaint in the third part of the second plea in law must be dismissed as unfounded, as must, consequently, the whole of the third part and the second plea in law in its entirety.
417    It follows from the foregoing that the claims seeking the annulment of the contested decision must be dismissed.
C.      The claim for compensation
418    In support of the claim for compensation, the applicant puts forward two heads of damage which constitute two separate parts. In the first part, it seeks compensation in the amount of EUR 20 000 on account of the unreasonable length of time involved in the procedure for the adoption of the contested decision. In the second part, it seeks compensation of EUR 23 651 903 for the financial and non-material damage which it attributes to the unlawful acts vitiating the contested decision, which replaced the decisions of 16 December 2014 and 8 May 2015.
419    The Commission disputes the merits of the applicant’s arguments.
1.      The conditions under which the EU institutions may incur liability
420    As a preliminary point, it must be recalled that, according to settled case-law, in order for the non-contractual liability of the European Union to be capable of being incurred in a given case, it is necessary, among other conditions, that the person seeking compensation for the loss or harm which he or she considers to have suffered as a result of conduct or an act of the European Union establishes the existence of a breach of a rule of law intended to confer rights on individuals (see judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 145 and the case-law cited).
421    Furthermore, that breach must be sufficiently serious, a requirement which itself depends on the discretion enjoyed by the EU institution which allegedly breached this rule and on whether it has manifestly and gravely disregarded the limits set on its discretion, in view, in particular, of the degree of clarity and precision of that rule, of the difficulties of interpretation or application which may ensue therefrom as well as the complexity of the situation to be settled (see judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 146 and the case-law cited).
422    Second, any damage for which compensation is sought in an action to establish non-contractual liability of the European Union under the second paragraph of Article 340 TFEU must be actual and certain. In any event, it is for the party seeking to establish the European Union’s non-contractual liability to adduce conclusive proof as to the existence and extent of the damage it alleges (see judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 135 and the case-law cited).
423    Thus, the existence of actual and certain damage cannot be considered in the abstract by the EU judicature but must be assessed in relation to the specific facts characterising each particular case in point (see judgment of 18 November 2021, Mahmoudian v Council, C‑681/19 P, not published, EU:C:2021:933, paragraph 32 and the case-law cited).
424    Third, the condition relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the EU institutions and the damage, the burden of proof of which rests on the applicant, so that the conduct complained of must be the determining cause of the damage (see judgment of 27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission, C‑549/21 P, not published, EU:C:2023:340, paragraph 114 and the case-law cited).
425    It is for the party seeking to establish the European Union’s non-contractual liability to adduce conclusive proof as to the existence of a sufficiently direct causal nexus between the conduct of the institution concerned and the damage alleged (see judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 62 and the case-law cited).
426    Nevertheless, it is a general principle common to the legal systems of the Member States, which is also applied by the Courts of the European Union, that the injured party must show reasonable diligence in limiting the extent of the loss or damage, or risk having to bear the loss or damage himself (see order of 12 May 2010, Pigasos Alieftiki Naftiki Etaireia v Council and Commission, C‑451/09 P, not published, EU:C:2010:268, paragraph 39 and the case-law cited).
427    The causal link may be broken by negligence on the part of the person adversely affected, where that negligence proves to be the determinant cause of the damage (judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 61).
428    It is in the light of those principles that the Court must examine the applicant’s claim for compensation.
2.      The first part, seeking compensation for damage resulting from the breach of a reasonable time limit
429    In support of the first part, the applicant submits that, following the delivery of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), it took more than two years for the Commission to adopt the contested decision and that that delay is unreasonable, with the result that it entails an obligation for the Commission to pay compensation in the amount of EUR 20 000.
430    In that regard, it must be borne in mind that the EU institutions are under an obligation to exercise their powers in accordance with the general principles of EU law, in particular the principle of good administration, which is now expressly enshrined in Article 41 of the Charter, paragraph 1 of which provides that every person has the right to have his or her affairs handled by the institutions of the Union, in particular within a reasonable time (see judgment of 12 May 2022, Klein v Commission, C‑430/20 P, EU:C:2022:377, paragraph 87 and the case-law cited).
431    Thus, it is for the administrative authority concerned to adopt a position, when it is supposed to do so, and to close proceedings, once opened, within a reasonable time (judgment of 12 May 2022, Klein v Commission, C‑430/20 P, EU:C:2022:377, paragraph 89).
432    Furthermore, the reasonableness of the length of proceedings cannot be determined by reference to a precise maximum limit determined in an abstract manner. It must be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity, the various procedural stages which the EU institution followed and the conduct of the parties in the course of the procedure. In that regard, the list of relevant criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination, by the EU Courts, of the circumstances of the case in the light of each factor (see judgment of 12 May 2022, Klein v Commission, C‑430/20 P, EU:C:2022:377, paragraph 86 and the case-law cited).
433    In the present case, it is necessary, in the first place, to determine whether the time taken by the Commission to adopt the contested decision exceeded a reasonable period, with the result that the Commission infringed the requirements set out in paragraphs 430 and 431 above.
434    First, it should be noted that the period of three months which elapsed between the delivery of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), and the letter of 6 May 2019 by which the Commission asked the applicant to produce certain documents cannot be regarded as unreasonable having regard to the legal complexity of the case and of that judgment.
435    In that regard, it should be recalled that, in paragraphs 190 and 191 of the judgment of 22 September 2022, IMG v Commission (C‑619/20 P and C‑620/20 P, EU:C:2022:722), the Court of Justice confirmed that the concept of ‘international organisation’ to which the EU Financial Regulations refer was a general concept the interpretation of which, for the purposes of that legislation, may give rise to difficulties in the absence, in particular, of case-law on that subject and that the application of that concept could also, in the present case, prove to be complex and give rise to difficulties in the legal categorisation of the facts, in view of the applicant’s specific situation.
436    Second, the applicant is also unfounded in criticising the Commission for the period which elapsed between 6 May and 18 July 2019, during which the Commission attempted to comply with the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78), by means of written exchanges with it, and the period which elapsed between 18 July 2019, the date on which the Commission repeated its request of 6 May 2019 to it, and 26 November 2019, the date on which the Commission sent its requests for information to the States which were allegedly members of the applicant.
437    Similarly, account must be taken of the fact that the overall period of two years, four months and eight days at the end of which the contested decision was adopted includes the period for consultation of the States questioned by the Commission, on account of the applicant’s refusal to provide it with its establishment documents, duly signed and accompanied by supporting documents.
438    Consequently, that part of the period at issue, from 6 May 2019 to 10 February 2021, the date of the last response to the consultation initiated by the Commission, is attributable not to the Commission but to the applicant, which failed to show reasonable diligence following the delivery of the judgment of 31 January 2019, International Management Group v Commission (C‑183/17 P and C‑184/17 P, EU:C:2019:78).
439    Third, it cannot be considered that the Commission’s actions were slow between 10 February and 19 February 2021, the date on which it sent the applicant its draft decision for comments. Moreover, the applicant is not justified in complaining about the period of just over three months, between 19 February and 8 June 2021, which corresponds both to the period given to it to submit observations and to the time taken by the Commission to take due account of its observations, in accordance with its right to be heard.
440    Thus, it follows from the foregoing that the time taken by the Commission to prepare and adopt the contested decision is not unreasonable within the meaning of the case-law cited in paragraphs 430 and 431 above.
441    In the second place, it must be held that the applicant has not established the existence of any material or non-material damage resulting from the infringement alleged in support of that head of claim.
442    Consequently, the present part must be dismissed as unfounded.
3.      The second part, seeking compensation for the financial and non-material damage allegedly caused by the contested decision
443    In support of the second part, the applicant seeks an order that the Commission pay it the sum of EUR 8 651 903 by way of compensation for the financial damage which it attributes to the contested decision and the sum of EUR 15 million as compensation for the non-material damage it has suffered.
444    In that regard, it follows from paragraph 417 above that the claims seeking annulment of the contested decision were dismissed, and therefore the first condition referred to in paragraph 420 above, for the European Union to incur non-contractual liability and relating to existence of a breach of a rule of law intended to confer rights on individuals, has not been satisfied.
445    Moreover, while it is true that the Commission vitiated the contested decision by errors in law by refusing to classify the resolution of 25 November 1994 as an international agreement, those errors have no bearing on the lawfulness of that decision and cannot, consequently, be regarded as the direct and certain cause of the damage which the applicant attributes to it.
446    Furthermore, the applicant does not rely, in support of the claim for compensation put forward in the context of the present part, on heads of unlawfulness which differ from those which it set out in support of its claims for annulment.
447    Consequently, the second part put forward in support of the claim for compensation must be dismissed as unfounded and, accordingly, those claims must be rejected in their entirety.
V.      Costs
448    In accordance with Article 134(1) and (3) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings, and the parties are to bear their own costs where each party succeeds on some and fails on other heads. Lastly, in accordance with Article 135(1) of the Rules of Procedure, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own, or even that it is not to be ordered to pay any.
449    In the present case, the applicant has been unsuccessful. However, it has been found that the Commission erred in law in its reasoning in the contested decision to the effect that the resolution of 25 November 1994 could not be classified as an international agreement, which may have prompted the applicant to bring the present action in order to obtain a declaration of unlawfulness. In those circumstances, the Court considers that it is appropriate to order that the parties should bear their own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber, Extended Composition)
hereby:
1.      Dismisses the action;
2.      Orders each party to bear its own costs.
Truchot
Kanninen
Frendo
Sampol Pucurull
Perišin
Delivered in open court in Luxembourg on 4 September 2024.
[Signatures]
Table of contents
I.
Background to the dispute
A.
Administrative background
B.
Legal background
C.
Administrative actions following the judgment of 31 January 2019, International Management Group v Commission (C183/17 P and C184/17 P)
D.
Judicial actions following the judgment of 31 January 2019, International Management Group v Commission (C183/17 P and C184/17 P)
II.
Events subsequent to the bringing of the action
III.
Forms of order sought
IV.
Law
A.
Admissibility
1.
The validity of the authority to act granted by the applicant to its lawyers
2.
Admissibility of Annex A.24 to the application
3.
Admissibility of Annex C.1 to the reply
B.
The claim for annulment
1.
The first part of the second plea in law, alleging breach of the obligation to state reasons
2.
The first plea in law, alleging several errors in law, in particular infringement of Article 266 TFEU, of the force of res judicata and breach of the principle of non-retroactivity
(a)
The first part, alleging infringement of Article 266 TFEU and the force of res judicata attaching to the judgment of 31 January 2019, International Management Group v Commission (C183/17 P and C184/17 P)
(1)
The first complaint, alleging infringement of Article 266 TFEU
(2)
The second complaint, alleging breach of the principle of res judicata
(b)
The second part, alleging breach of the principle of good faith, the maxim ‘nemo auditur propriam turpitudinem allegans’ and the principle of non-retroactivity
(1)
The second complaint, alleging breach of the principle of non-retroactivity of EU measures
(2)
The first complaint, alleging breach of the principle of good faith and the maxim ‘nemo auditur’
(c)
The third part, alleging breach of the principle of equal treatment
3.
The third plea in law, alleging breach of the principle of legal certainty
4.
The fourth plea in law, alleging manifest errors of assessment and other errors in law
(a)
The definition of the concept of ‘international organisation’ provided for by the EU Financial Regulations
(b)
The first part, alleging manifest errors of assessment and errors in law relating to the identification of the applicant’s members
(1)
The first complaint, alleging a manifest error of assessment resulting from an artificial distinction between the applicant’s founding States, the contributing States and the members of its steering committee
(2)
The second complaint, alleging a manifest error of assessment vitiating the interpretation of the positions adopted by Belgium and Austria
(i)
The first argument, alleging a manifest error of assessment vitiating the interpretation of the Austrian authorities’ reply
(ii)
The second argument, alleging a manifest error of assessment vitiating the interpretation of the Belgian authorities’ reply
(3)
The third complaint, alleging errors in law and a manifest error of assessment on the part of the Commission in refusing to recognise that the European Union had become a member of the applicant
(c)
The second part, alleging errors in law vitiating the Commission’s refusal to classify the resolution of 25 November 1994 as an international agreement establishing an international organisation
(1)
The first complaint, alleging errors in law resulting from the Commission’s refusal to classify the resolution of 25 November 1994 as an international agreement
(i)
The first argument, alleging an error in law as regards the legally binding nature of the resolution of 25 November 1994
(ii)
The second argument, alleging an error in law as regards the requirement for the resolution of 25 November 1994 to be signed by representatives with powers to that effect
(iii)
The third argument, alleging errors in law as regards the requirement of instruments of signature or ratification of the resolution of 25 November 1994
(iv)
The effect of the merits of the first and second arguments of the present complaint on the lawfulness of the contested decision
(2)
The second complaint, alleging an error of interpretation as to the intention of the signatories to the resolution of 25 November 1994 to grant the applicant the status of an international organisation
(d)
The third part, alleging errors in law as regards the subsequent practice of the signatories to the resolution of 25 November 1994 and the recognition of the status of international organisation by the European Union and certain States
(1)
The first complaint, alleging an error in law as regards the subsequent practice of the signatories to the resolution of 25 November 1994
(2)
The second complaint, alleging errors in law in that the Commission failed to take account of the recognition of the applicant’s status as an international organisation by the European Union and certain States
(i)
The first argument, alleging that the Commission infringed Articles 27 and 46 of the Vienna Convention by no longer recognising the applicant’s status as an international organisation
(ii)
The second argument, alleging an error in law in that the Commission did not take into account the headquarters agreements concluded by the applicant
(3)
The third complaint, alleging an error in law in that the Commission failed to take account of the fact that its members had not dissolved it and the fact that it complied with the principle of speciality
5.
The second and third parts of the second plea in law, alleging breach, respectively, of the duty of diligence and the obligation of impartiality
(a)
The second part of the second plea in law, alleging breach of the duty of diligence
(b)
The third part, alleging breach of the obligation of impartiality
C.
The claim for compensation
1.
The conditions under which the EU institutions may incur liability
2.
The first part, seeking compensation for damage resulting from the breach of a reasonable time limit
3.
The second part, seeking compensation for the financial and non-material damage allegedly caused by the contested decision
V.
Costs
*      Language of the case: French.