62010CO0433_EN
Parties
Grounds
Operative part
Parties
In Case C‑433/10 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 September 2010,
Volker Mauerhofer,
residing in Vienna (Austria), represented by J. Schartmüller, Rechtsanwalt,
appellant,
the other party to the proceedings being:
European Commission,
represented by S. Boelaert, acting as Agent, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Fifth Chamber),
composed of J.-J. Kasel, President of Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges,
Advocate General: P. Cruz Villalón,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
Grounds
1. By his appeal, Mr Mauerhofer asks the Court to set aside the order of the General Court of the European Union of 29 June 2010 in Case T‑515/08 Mauerhofer
v Commission (‘the order appealed against’), by which that Court dismissed his action seeking, first, annulment of the administrative order of the Commission of the European Communities of 9 September 2008 amending specific contract 2007/146271 concluded between the Commission and the framework contractor for the project ‘Value Chain Mapping Analysis’ carried out in Bosnia and Herzegovina (‘the administrative order at issue’), and, second, the award of damages.
Contractual context
Multiple framework contract ‘Commission 2007’
2. The Commission of the European Communities established, from 16 January 2007 for an initial, renewable, period of two years, a multiple framework contract entitled ‘EuropeAid/123314/C/SV/multi’ or ‘Commission 2007’, which has the aim of enabling the rapid and transparent recruitment of experts in the context of actions, grouped together in six lots, undertaken in the exclusive interest of the Commission or in the common interest of the Commission and of the countries or authorities that are the beneficiaries of external aid programmes. This multiple framework contract is made up of contracts that are separate but concluded on the same terms with a number of service providers.
3. For each of the six lots, three framework contractors were selected by the Commission and they concluded framework contracts with it. Once the Commission has concluded a framework contract with a particular framework contractor, the users of the system, including Commission delegations to non-member countries, can issue requests for specific services. These requests are sent to the three framework contractors for the lot concerned, who then submit their offers. After the offers have been received, the user’s evaluators choose the economically most advantageous offer on the basis of the availability and profile of the experts and the proposed fees. The procedure leads in this way to the conclusion of a specific contract between the Commission and the framework contractor chosen.
Framework contract of 12 January 2007 concluded between the Commission and the consortium led by AESA
4. Pursuant to the multiple framework contract ‘Commission 2007’, the Commission and the consortium led by Agriconsulting Europe SA (‘AESA’) concluded on 12 January 2007 a framework contract for Lot No 5 ‘Evaluations and presentations in the field of trade, businesses and regional economic integration’.
5. This framework contract comprises the special conditions of the framework contract (‘the Special Conditions’) and a set of annexes, which include Annex 1, containing the general conditions governing the contract (‘the General Conditions’), and Annex 2, containing the global terms of reference with their own annexes (‘the Global Terms of Reference’).
6. Article 11 of the Special Conditions confers exclusive jurisdiction on the courts of Brussels (Belgium) for settling disputes arising out of or relating to the framework contract.
7. Article 20 of the General Conditions sets out the rules governing amendments to the specific contract concluded between the contracting authority and the framework contractor.
8. Thus, Article 20.1 of the General Conditions stipulates that substantial modifications to the specific contract must be made by means of an addendum.
9. Article 20.2 of the General Conditions, on the other hand, provides that where the amendment does not affect the basic purpose of the specific contract and where, in the case of a specific contract providing for fees for the work of experts (a fee‑based specific contract), the financial impact of the amendment is limited to a transfer within the fees or between the fees and the reimbursables, involving a variation of less than 15% of the total value of the original contract, the amendment is authorised by means of an administrative order made by the project manager. The project manager monitors the implementation of the contract on behalf of the contracting authority.
10. Article 20.4 to 20.6 of the General Conditions provide explanation regarding the procedure for making an administrative order.
11. It is apparent from Article 20.4 of the General Conditions that, before making an administrative order, the project manager must notify the framework contractor of the nature and form of the variation of the services supplied that is to be covered by the administrative order. After receiving such notification, the framework contractor must submit to the project manager a written proposal containing (i) a description of the service to be performed or the measures to be taken and a programme for execution of the service or measures, (ii) any necessary modifications to the programme of performance in question or to the framework contractor’s obligations under the contract and (iii), in the case of a fee-based contract, any adjustment to the value of the specific contract.
12. Article 20.5 of the General Conditions provides that, following receipt of the framework contractor’s proposal, the project manager must decide whether or not the variation is to be carried out. If he decides that the variation is to be carried out, he must issue the administrative order stating that the variation is to be carried out under the conditions given in the framework contractor’s proposal or as modified by the project manager in accordance with Article 20.4 of the General Conditions.
13. Article 20.6 of the General Conditions stipulates in essence that, upon receipt of the administrative order requesting the variation, the framework contractor must proceed to carry out the variation and is to be bound by it as if it were stated in the specific contract.
14. Point 3.2 of the Global Terms of Reference provides that the framework contractor is responsible for all administrative aspects of the assignment entrusted to him by a specific contract, namely, in particular, for the conclusion of contracts with experts.
15. Point 7.1.5 of the Global Terms of Reference provides that, once the final report or other outputs are accepted, the framework contractor must invoice the contracting authority identified in the specific contract as rapidly as possible. Point 7.1.5 also provides that the framework contractor is responsible for the timely payment of the experts and that the contracting authority is in no way liable in this regard.
Specific contract of 21 December 2007 concluded between the Commission and AESA
16. On 16 November 2007, the Commission delegation to Bosnia and Herzegovina sent the three framework contractors for Lot No 5 a request for recruitment of experts for the project ‘Value Chain Mapping Analysis’, whose aim, in essence, was the strengthening of the competitiveness of the Bosnian economy. The consortium led by AESA was selected on the basis of an offer submitted on 3 December 2007. A specific contract, bearing the reference 2007/146271, was thus concluded on 21 December 2007 between the Commission and AESA for the price of EUR 177 950 and for a six-month period expiring on 15 July 2008.
17. This contract contained, in particular, the specific terms of reference for the project ‘Value Chain Mapping Analysis’ (‘the Specific Terms of Reference’). The Specific Terms of Reference contained details regarding the profile of the experts required to carry out the assignment envisaged by the specific contract, who had to be recruited by the consortium led by AESA. The Specific Terms of Reference foresaw the use of three experts, namely an expert in value-chain analysis, who would also be appointed the experts’ team leader, an expert for small- and medium-sized enterprises (SMEs) and an environmental business adviser. The Specific Terms of Reference also stated indicatively that the participation of each expert in the project would amount to 85 man‑days for the first expert, 75 man‑days for the second expert and 20 man‑days for the third expert.
18. In its offer submitted to the Commission, the consortium led by AESA proposed the appellant, Mr Mauerhofer, for the duties of expert No 3, that is to say, environmental business adviser. AESA proposed to invoice the Commission for 20 days’ work by the appellant on the project ‘Value Chain Mapping Analysis’, at a unit price of EUR 760. Thus, the budget proposed by AESA to the contracting authority amounted to EUR 15 200 so far as the work performed by expert No 3 was concerned.
Contract of 11 January 2008 concluded between the appellant and AESA
19. Following the conclusion of specific contract 2007/146271 between the Commission and AESA, on 11 January 2008 AESA concluded a contract with Mr Mauerhofer, bearing the reference LF/5043/025/004/2008, for the supply by him of an expert’s report as environmental business adviser.
20. Article 2 of the special clauses of the contract stipulates, so far as is relevant, as follows:
‘The present contract has been concluded for a predetermined enterprise … with an estimated duration of 20 calendar days …
The contract will expire upon approval of the Final Report on the project. …
The termination of the contract between [AESA] and the … Commission will automatically put an end to the present contract, and the Expert will be paid for approved work actually carried out without any compensation.
Should the … Commission request the replacement of the Expert, [AESA] can terminate the present contract without notice nor indemnity of any kind.
…
[AESA] is solely responsible for the Collaborator’s work. The … Commission may not under any circumstances be considered to be the employer of the Collaborator, and the Collaborator undertakes not to invoke against the … Commission any right arising from the working relationship between the Commission and [AESA].’
21. Article 3 of the special clauses of the contract stipulates that the appellant’s remuneration consists of a daily fee of EUR 500 gross and a daily allowance of EUR 143 to cover the expenses linked to his stay in the territory concerned by the project ‘Value Chain Mapping Analysis’. Article 3 also sets out the manner in which the appellant’s remuneration would be paid by AESA. Thus, 20% of his fees, that is to say EUR 2 000, would be paid to him as an advance, 30% of his fees, that is to say EUR 3 000, would be in the form of an interim payment and, lastly, the remaining 50%, that is to say EUR 5 000, would be paid as a final payment, following receipt by AESA of his final invoice and approval of the final report by the appropriate services of the European Commission or by the project beneficiary.
22. Article 11 of the general clauses of the contract concluded between AESA and Mr Mauerhofer confers jurisdiction on the Brussels Court of First Instance to hear disputes which may arise between the parties on the application and the interpretation of the contract.
Facts
23. The facts are set out in paragraphs 26 to 38 of the order appealed against as follows:
‘26 The indicative date for the commencement of work related to the project “Value Chain Mapping Analysis” was set as 15 January 2008 and the date for completion of the work was set as 15 July 2008 ...
27 It is apparent from the documents before the Court that in April 2008 the project manager expressed to the experts’ team leader and AESA her dissatisfaction regarding the quality of the [appellant’s] written contribution and indicated that if the contribution were not put right she would not be able to accept it. Ultimately, the [appellant’s] written contribution was accepted by the project manager, following changes which were made to it both by the project manager herself and by the experts’ team leader.
28 By email of 14 August 2008, the project manager, voicing her dissatisfaction in respect of the work performed by the [appellant], expressed the view that he should be paid for only half of the days worked.
29 In response to this email, the person responsible for the project at AESA stated, by email of the same day, that, in order for AESA to be able to pay the [appellant] for fewer days’ work and the experts’ team leader for more, AESA needed an official letter from the Commission explaining why the [appellant] was not to be paid for all the days worked. AESA was stated in the email not to have the contractual power to reduce the appellant’s remuneration without such a letter.
30 By letter of 9 September 2008, the Commission delegation to Bosnia and Herzegovina communicated to AESA [the administrative order at issue], amending specific contract 2007/146271 concluded between the two parties. By means of this administrative order, the project manager allowed the transfer of six man-days’ work of the [appellant], budgeted for in the original specific contract, to the budget envisaged for expert No 1 and team leader, on the grounds of the [appellant’s] unsatisfactory performance and the additional work to which this had led for the team leader.
31 According to the letter of 9 September 2008, the [appellant’s] unsatisfactory performance resulted from the fact that he wrongly devoted half of the time allocated to him to drawing up a report which proved not to be in line with the instructions and explanations that had been provided to him. He then used the second half of the time available to him to rewrite his report. The letter stated that when the report was completed its drafting quality was found not to be of an acceptable standard, this requiring significant revision carried out by the team leader, over and above the number of man-days that had been originally allocated to him.
32 By email of 10 September 2008, the person responsible for the project “Value Chain Mapping Analysis” at AESA informed the [appellant] that the administrative order at issue had been made and told him that, following the making of the order, he would be paid only for 14 days’ work instead of 20. She accordingly requested him to submit the final invoice for his services to AESA, taking account of that reduction.
33 By letter of the same day, the [appellant] asked the Commission to reconsider the contested measure, indicating the reasons which in his view justified such reconsideration.
34 By email of 12 September 2008, in response to the [appellant’s] letter of 10 September 2008, the Commission requested the [appellant] to address any question concerning specific contract 2007/146271 to AESA and not to the Commission, which had no contractual relationship with the [appellant].
35 By letter of 29 September 2008, the [appellant] sent AESA the final invoice, which came to EUR 10 000 corresponding to 20 days’ work, plus EUR 500 corresponding to an additional day’s work which the [appellant] stated that he had had to devote to the project due to the “fault of [his] contract partner [AESA]”.
36 By letter of 15 October 2008, the [appellant] asked AESA to recognise all the claims set out in the final invoice and to pay him the as yet unpaid sum of EUR 5 500, setting 4 November 2008 as a deadline. …
37 By letter also of 15 October 2008, the [appellant] asked the Commission to withdraw in writing the administrative order at issue by 24 October 2008 at the latest.
38 In response to the letter of 15 October 2008, the Commission, by letter of 22 October 2008, stated that “the [a]dministrative [o]rder [at issue] was the only solution … to bring this contract to a successful conclusion within the foreseen budget and deadlines” and advised the [appellant] to contact AESA, given the fact that he had a contractual relationship with AESA.’
Proceedings before the General Court and order appealed against
24. By application lodged at the Registry of the General Court on 19 November 2008, Mr Mauerhofer brought an action for annulment of the administrative order at issue and for the award of damages.
25. By separate document lodged at the Registry of the General Court on 6 February 2009, the Commission raised a ground of inadmissibility under Article 114 of the Rules of Procedure of the General Court.
26. Firstly, the Commission drew attention to the purely contractual nature of the dispute and to the fact that it had not acted, in this case, in the exercise of its powers as a public authority. The administrative order at issue was therefore not a decision within the meaning of Article 288 TFEU, against which an action for annulment may be brought under Article 263 TFEU. That conclusion resulted from settled case‑law according to which actions for annulment against acts whose legal basis lies in a contract concluded by the European Union are possible only if the Courts of the Union have been designated, in accordance with Article 272 TFEU, as having jurisdiction in disputes arising from that contract.
27. Secondly, the Commission contended that it never had a contractual relationship with the appellant and that its contractual relationship was only with AESA. Since the dispute concerning the payment of Mr Mauerhofer’s fees was between him and AESA, the decision by which those fees were reduced should, according the Commission, have been contested before the Brussels Court of First Instance.
28. On 26 March 2009, the appellant submitted his observations on that ground of inadmissibility and claimed that it should be rejected.
29. The appellant claimed in particular that the case‑law relied on by the Commission and relating to the arbitration clause referred to in Article 272 TFEU did not apply in this case, since his application concerned a dispute of a non‑contractual nature between himself and the Commission. His action for annulment was therefore admissible in so far as it could be demonstrated that the contested measure was of direct and individual concern to him.
30. The appellant further requested the General Court to order the Support Team for the Framework Contract concluded between the Commission and AESA to produce the assessment form in respect of the framework contractor and the experts that was filled in by the manager of the project ‘Value Chain Mapping Analysis’.
31. By the order appealed against, the General Court dismissed the action as being in part inadmissible and in part manifestly unfounded.
32. As regards the ground of inadmissibility raised by the Commission, the General Court stated, as a preliminary point, in paragraphs 63 and 64 of the order appealed against, that ‘[i]t is common ground that in the present dispute there is no contractual relationship between the parties’ and that, consequently, the case-law relied upon by the Commission in support of the ground of inadmissibility raised, stressing the contractual nature of the contested measure, was not relevant. The General Court thus held, in paragraph 65 of the order appealed against, that ‘an action for annulment of the contested measure is available to the [appellant] provided that that measure is a challengeable act and that, at the same time, the [appellant] has standing to bring proceedings’.
33. Accordingly, the General Court examined, in paragraphs 66 to 73 of that order, whether the administrative order at issue constituted, for the appellant, a challengeable act.
34. The General Court first recalled, in paragraph 66 of that order, the settled case‑law according to which ‘an action for annulment is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position’.
35. It then examined, in paragraphs 67 to 72 of the same order, whether the administrative order at issue brought about a distinct change in the appellant’s legal position.
36. The General Court noted, first, in paragraph 68 of the order appealed against, that the legal framework of the dispute brought before it consisted of two separate contractual relationships, namely that between the Commission and AESA and that between AESA and the appellant.
37. Second, the General Court pointed out, in paragraph 69 of that order, that the administrative order at issue was adopted within the framework of the contractual relationship between the Commission and AESA, ‘with regard to which the [appellant] is a third party’.
38. In paragraph 70 of the order appealed against, the General Court ruled, inter alia, as follows:
‘It follows that, in making the administrative order at issue, the Commission acted solely within the framework of the rights and obligations arising from the contractual terms between it and AESA, and not in the exercise of its powers as a public authority. Consequently, the administrative order at issue is a measure of a contractual nature and it does not constitute an administrative act adopted by the Commission, the legal effects of which might go beyond the contractual framework binding it and AESA and affect the legal position of a person not party to the contract, in the present instance the [appellant].’
39. Finally, the General Court found, in paragraphs 71 and 72 of that order, that the administrative order at issue had produced legal effects solely in relation to AESA, without legally affecting the rights and obligations arising from the contract concluded between AESA and the appellant.
40. In the light of the foregoing, the General Court concluded, in paragraph 73 of that order, that the administrative order at issue did not bring about a distinct change in the appellant’s legal position and, therefore, did not constitute in his regard an act that was challengeable by means of an action for annulment. Accordingly, it declared the claim for annulment of the administrative order at issue inadmissible.
41. As regards the claim for damages brought by the appellant on the basis of the Commission’s non-contractual liability, the General Court concluded, in paragraph 85 of the order appealed against, that that claim had to be dismissed as manifestly unfounded.
42. Having first of all recalled the case‑law concerning the conditions to be satisfied in order for the Union to incur non‑contractual liability, the General Court held that one of those conditions, namely the existence of a causal link between the conduct alleged and the damage pleaded, was manifestly lacking in this case.
43. In that regard, the Court then recalled, in paragraph 80 of the order appealed against, that such a link is accepted only ‘where there is a sufficiently direct causal nexus between the conduct of which the institution is accused and the damage pleaded, the burden of proof of which rests on the applicant’.
44. In paragraphs 82 and 83 of that order, the General Court held that the losses pleaded by Mr Mauerhofer, a sum of EUR 5 000 corresponding to the final tranche of his remuneration which AESA refused to pay him, invoking the administrative order at issue, and a sum of EUR 500 corresponding to the fees relating to an additional day’s work which he had to spend on necessary modifications to his work as a result of the lack of adequate instructions given by the Commission to the experts’ team leader, constitute in actual fact the remuneration which is due to him in return for the services rendered and which is governed solely by the contract between himself and AESA.
45. In paragraph 84 of the order appealed against, the General Court made the following findings:
‘In light of the loss pleaded by the [appellant], as defined in paragraph 82 above, and of the analysis contained in paragraph 83 above, it must be concluded that that loss is the direct result of the alleged refusal of AESA to remunerate the [appellant] for the work which he claims to have performed, and not of the Commission’s allegedly unlawful conduct, be it the making of the administrative order at issue or the lack of appropriate instructions to the experts’ team leader. Therefore, the sufficiently direct causal nexus between the Commission’s allegedly unlawful conduct and the losses alleged by the [appellant] is manifestly lacking.’
46. Finally, in paragraph 89 of the order appealed against, the General Court held that, given the dismissal of the action for annulment as inadmissible and of the claim for damages as manifestly unfounded, there was no need to have recourse to the measure of organisation of procedure requested by the appellant.
Forms of order sought before the Court of Justice
47. The appellant claims that the Court should:
– set aside the order appealed against;
– rule definitively on the substance and annul the administrative order at issue or, in the alternative, refer the case back to the General Court to rule again;
– exercise its unlimited jurisdiction and award him the sum of EUR 5 500 by way of damages to compensate for the financial loss resulting from the Commission’s unlawful conduct in adopting the administrative order at issue and from the lack of appropriate instructions given to the experts’ team leader;
– order the production, by the support team for the framework contract concluded between the Commission and AESA, of the framework contractor assessment form drawn up concerning the
project forming the subject of the dispute, and
– order the Commission to pay the costs of the proceedings at first instance and of the appeal.
48. The Commission contends that the appeal should be dismissed and the appellant ordered to pay the costs.
Appeal
49. Under Article 119 of its Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal in whole or in part, without opening the oral procedure.
50. The appellant puts forward 16 grounds in support of his appeal. The first of them alleges distortion of the clear sense of the evidence. The second and third grounds allege failure to state the grounds of the order appealed against. By his fourth to seventh grounds, the appellant submits that the General Court made errors of law in its analysis of the lawfulness and legal effects of the administrative order at issue. The eighth ground alleges unlawful breach of the interests of the appellant as a consequence of failure to follow prescribed procedures. The ninth and tenth grounds allege breach of the principle of equal treatment and of fundamental rights. By his eleventh ground, the appellant claims that the General Court erred in law in holding that the redistribution of days worked among the experts did not constitute a substantial amendment to the contract concluded between AESA and the Commission. The twelfth ground alleges breach of the rights of the defence. The last four grounds of the appeal concern the dismissal by the General Court of the claim for damages and allege a number of errors of fact and of law.
The fourth and fifth grounds
Arguments of the parties
51. By his fourth and fifth grounds, which must be examined together and first, the appellant claims that the General Court erred in law in holding that the administrative order at issue did not bring about a distinct change in his legal position.
52. The appellant relies on settled case-law that persons other than those to whom a decision is addressed are individually concerned by it if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of the person addressed. The fact that the administrative order at issue expressly mentions the appellant is, he asserts, sufficient for him to be regarded as being individually and directly concerned.
53. By his fifth ground, the appellant maintains that AESA relied directly on the administrative order at issue in order to alter his contractual position, which it would not have done if that administrative order had not been made. Moreover, that administrative order could have adverse effects on his future position, in so far as that document, which contains an incorrect assessment of his professional performance, is available on the Commission’s intranet.
54. In any event, the term ‘legal position’ should be broadly interpreted to include not only the contractual rights and obligations mentioned by the General Court in paragraph 72 of the order appealed against, but also
procedural rights and obligations as well as fundamental rights.
55. The Commission submits that the General Court correctly applied the case‑law concerning the concept of challengeable act.
Findings of the Court
56. The appellant seeks in essence to show that the General Court erred in law in holding that the administrative order at issue did not have, in regard to him, the characteristics of a challengeable act for the purposes of Article 263 TFEU.
57. As is clear from settled case-law, an action for annulment is available against all measures adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see, inter alia, Case 60/81 IBM
v Commission
[1981] ECR 2639, paragraph 9; Case C-521/06 P Athinaïki Techniki
v Commission
[2008] ECR I-5829, paragraph 29; and Case C‑362/08 P Internationaler Hilfsfonds
v Commission
[2010] ECR I‑0000, paragraph 51).
58. It also follows from settled case-law concerning the admissibility of actions for annulment that it is necessary to look to the actual substance of the acts challenged in order to classify them (see, inter alia, IBM
v Commission, cited above, paragraph 9, and Case C‑147/96 Netherlands
v Commission
[2000] ECR I‑4723, paragraph 27).
59. It must be held that the appellant has not shown in what respect the General Court did not correctly apply the case‑law cited in paragraphs 57 and 58 of the present order.
60. In paragraph 65 of the order appealed against, the General Court found that, in light of the absence of a contractual relationship between the appellant and the Commission, an action for annulment of the administrative order at issue was available to the applicant provided that that administrative order was, for him, a challengeable act and that, at the same time, the applicant had standing to bring proceedings.
61. In that regard, the General Court examined, in paragraphs 66 to 72 of the order appealed against, whether that administrative order constituted, for the applicant, a challengeable act. To that end, the General Court considered whether that administrative order brought about a distinct change in the applicant’s legal position, concluding that this was not the case since that administrative order produced and exhausted all its effects in the contractual relationship between the Commission and AESA, with regard to which the appellant was a third party.
62. In addition, the appellant’s argument that the mention of his name in the administrative order at issue was sufficient to distinguish him individually cannot be accepted. The case‑law relied on by the appellant in support of that argument applies not to the concept of ‘challengeable act’ for the purposes of Article 263 TFEU, but to that of ‘standing of natural or legal persons to bring proceedings’ in the context of an action for annulment for the purposes of that article. The General Court was therefore right in concluding, in paragraph 73 of the order appealed against, that, since the administrative order at issue did not constitute, for the applicant, a challengeable act, it was not necessary to examine whether he had standing to bring proceedings.
63. In the light of all those factors, it must be held that the General Court was fully entitled to hold that the administrative order at issue did not constitute a challengeable act which could be the subject of an action for annulment under Article 263 TFEU.
64. The fourth and fifth grounds must therefore be rejected as being clearly unfounded.
First and second grounds
Arguments of the parties
65. By his first ground, the appellant complains that the General Court unduly widened the reason for the transfer of six days’ work in question by referring, in paragraph 31 of the order appealed against, to the ‘drafting quality’ of the applicant’s work, instead of referring strictly to its ‘language quality’.
66. That error and the failure to take into account other facts relating to the defects of a linguistic nature alleged against the applicant distorted the clear sense of the evidence produced by him.
67. The appellant claims, by his second ground, that that distortion of the clear sense of the evidence led to an inadequate analysis of the grounds of the order appealed against as regards the linguistic review of his performance.
68. The Commission contends that the appellant has not demonstrated either the substantive inaccuracy of the findings of fact made by the General Court or any distortion by the latter of the clear sense of the evidence produced to it. Consequently, the appellant’s claim that the General Court distorted the clear sense of that evidence is manifestly unfounded. Since the second ground is closely linked to the first, there is no need for the Court to examine it.
Findings of the Court
69. In that regard, it must be recalled that, according to settled case‑law, it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts – except where the substantive inaccuracy of its findings is apparent from the documents submitted to it – and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, among others, Case C‑551/03 P General Motors
v Commission
[2006] ECR I‑3173, paragraph 51; judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa
v Commission, paragraph 72; Joined Cases C‑101/07 P and C‑110/07 P Coop de France bétail et viande and Others
v Commission
[2008] ECR I‑10193, paragraph 58; and Case C‑535/06 P Moser Baer India
v Council
[2009] ECR I‑7051, paragraph 31).
70. Thus, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court has accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, in particular, General Motors
v Commission, cited above, paragraph 52; Evonik Degussa
v Commission, cited above, paragraph 73; Coop de France bétail et viande and Others v Commission, cited above, paragraph 59; and Moser Baer India
v Council, cited above, paragraph 32).
71. It is important, also, to point out that a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, in particular, General Motors
v Commission, paragraph 54; Evonik Degussa
v Commission, paragraph 74; Coop de France bétail et viande and Others v Commission, paragraph 60; and Moser Baer India
v Council, paragraph 33).
72. In this instance, having regard to the arguments put forward by the appellant, it is not obvious that the findings made by the General Court contain substantive inaccuracies. In particular, it cannot be maintained that the General Court was not properly entitled to use the term ‘drafting quality’ to refer to the problems of a linguistic nature encountered in an expert’s report.
73. It follows from the foregoing that the first and second grounds are clearly unfounded. They must therefore be rejected.
Third ground
Arguments of the parties
74. By his third ground, the appellant claims that the General Court erred in law in omitting to set out the reasons why it disregarded his arguments put forward against the complaint made against him concerning the inadequacy of his professional performance.
75. According to the Commission, the General Court was right in refraining from examining those arguments in so far as it concluded that the action for annulment against the administrative order at issue was inadmissible.
Findings of the Court
76. It must be pointed out that the question whether the grounds of a judgment of the General Court are contradictory or inadequate is a question of law which is amenable, as such, to review on appeal (see, in particular, judgment of 11 January 2007 in Case C-404/04 P Technische Glaswerke Ilmenau
v Commission, paragraph 90, and Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others
v Council and Commission
[2008] ECR I-6513, paragraph 90).
77. In this case, however, it cannot be complained that the General Court did not examine the arguments put forward by the appellant in his action for annulment directed against the administrative order at issue and relating to the quality of his performance as an expert. Since that action for annulment had been declared inadmissible, there was no need to examine its substance.
78. It follows from the foregoing that the third ground is clearly unfounded. That ground must therefore be rejected.
Sixth ground
Arguments of the parties
79. By his sixth ground, the appellant claims that the General Court wrongly held that the administrative order at issue had not been made by the Commission in the exercise of its powers as a public authority.
80. He raises the point that that administrative order is based on a body of public legal instruments covered by Title III of the FEU Treaty, relating to cooperation with third countries and humanitarian aid. He also cites Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJ 2006 L 210, p. 82) and the Practical Guide to contract procedures for European Community external actions. He claims that those documents prove the public, and not purely contractual, nature of the administrative order at issue.
81. The Commission contends that the General Court did not err in law in holding that the administrative order at issue was made in the context of a contractual relationship.
Findings of the Court
82. In that regard, it must be held that the General Court was fully entitled to hold, in paragraph 69 of the order appealed against, that, by the administrative order at issue, the Commission had acted within the framework of the rights and obligations arising from the contract between it and AESA, since it had relied exclusively on the applicable contractual provisions, including, in particular, Article 20.2 of the General Conditions, relating to the rules for non‑substantial amendments made to specific contract 2007/146271.
83. In those circumstances, and in the light of the purely contractual context in which that administrative order was made, the General Court did not err in law in concluding, in paragraph 70 of the order appealed against, that the Commission had not acted in the exercise of its powers as a public authority.
84. Consequently, the sixth ground must also be rejected as clearly unfounded.
Seventh ground
Arguments of the parties
85. By his seventh ground, the appellant complains that the General Court did not hold that the administrative order at issue had been made after the expiry of the prescribed time‑limits.
86. The Commission contends that this is a new ground, which is therefore inadmissible at the appeal stage. It further submits that, in light of the inadmissibility of the action for annulment directed against the administrative order at issue, there was no need for the General Court to examine the circumstances in which that administrative order was made.
Findings of the Court
87. According to settled case‑law, in an appeal the Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the General Court (see, inter alia, Case C‑136/92 P Commission
v Brazzelli Lualdi and Others
[1994] ECR I‑1981, paragraph 59, and Joined Cases C‑24/01 P and C‑25/01 P Glencore and Compagnie Continentale
v Commission
[2002] ECR I‑10119, paragraph 62).
88. It must be stated that this ground constitutes a new argument which was not submitted to the General Court. It is not evident either from the originating application to the General Court or from the summary of the arguments of the parties in the order appealed against that this ground was relied on before the General Court.
89. Thus, the seventh ground is clearly inadmissible and must therefore be rejected.
Eighth ground
Arguments of the parties
90. According to the appellant, the General Court was wrong in holding that the administrative order at issue was made in compliance with the procedural requirements of the contractual framework applicable to the relationship between the Commission and AESA.
91. The Commission submits that this ground must be rejected for a number of reasons. First, it is a new ground, inadmissible at the appeal stage. Second, this ground concerns the circumstances in which the Commission made that administrative order. However, those circumstances were not examined by the General Court, since the action for annulment directed against that administrative order was inadmissible.
Findings of the Court
92. By his eighth ground, the appellant claims, in essence, that the General Court did not duly take account, in the order appealed against, of the alleged infringement by the Commission of the contractual clauses governing the making of administrative orders such as the administrative order at issue.
93. However, in so far as the General Court concluded that the claim for annulment directed against the administrative order at issue was inadmissible, it was not obliged to examine the circumstances in which that administrative order had been made.
94. The eighth ground must therefore be rejected as clearly unfounded.
Ninth and tenth grounds
Arguments of the parties
95. By his ninth and tenth grounds, which must be examined together, the appellant alleges breach, by the Commission, of the general principle of equal treatment and of fundamental rights.
96. He submits that the Commission committed a breach of the principle of equal treatment since it complied with the requirement that a formal written proposal was to be drawn up in advance of the adoption of the administrative order at issue, but that it did not follow that procedure when issuing it. The Commission thus treated comparable situations differently.
97. That conduct on the part of the Commission infringed, moreover, the appellant’s right to engage in work and his right to enjoy the freedom to conduct a business, as recognised in Articles 15 and 16 of the Charter of Fundamental Rights of the European Union, and the right to property, as recognised in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950.
98. The Commission submits that those grounds must be rejected since they are not directed at errors that the General Court allegedly committed.
Findings of the Court
99. In that regard, it should be recalled that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergadem and Goupil
v Commission
[2000] ECR I-5291, paragraph 34, and Case C-248/99 P France
v Monsanto and Commission
[2002] ECR I-1, paragraph 68).
100. However, in this case the appellant has not indicated, in his ninth and tenth grounds, in what respect the General Court allegedly erred in law. The alleged breaches of the principle of equal treatment and of the fundamental rights relied on by the appellant are attributable, not to the General Court, but to the conduct of the Commission at the time of adopting the administrative order at issue.
101. The ninth and tenth grounds must therefore be rejected as clearly inadmissible.
Eleventh ground
Arguments of the parties
102. By his eleventh ground, the appellant claims that the General Court erred in law in holding, in paragraph 69 of the order appealed against, that the administrative order at issue had given rise to a non‑substantial amendment to the contract concluded between the Commission and AESA for the purposes of Article 20.2 of the General Conditions. According to the appellant, a loss of over 25% of his fees constituted a substantial amendment to that contract, which should, therefore, have been made, not by means of an administrative order, but by means of an addendum to the same contract.
103. According to the Commission, this ground is new and therefore inadmissible.
Findings of the Court
104. As was recalled in the context of the examination of the seventh, ninth and tenth grounds, the Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the General Court. It must be stated that, by his eleventh ground, the appellant raises a matter which was not submitted to the General Court.
105. This ground is therefore clearly inadmissible and must therefore be rejected.
Twelfth ground
Arguments of the parties
106. According to the appellant, by not taking account of the fact that the Commission had failed to hear him, the General Court committed a breach of the rights of the defence.
107. According to the Commission, the documents submitted to the General Court show that the claim that the appellant was not heard is incorrect. In any event, this ground should be rejected since it concerns facts which the General Court did not examine because the action for annulment directed against the administrative order at issue was inadmissible.
Findings of the Court
108. By this ground, the appellant complains that the General Court did not examine whether the Commission had respected his right to be heard during the process of making that administrative order and during the evaluation of the project ‘Value Chain Mapping Analysis’.
109. However, as is clear from paragraph 77 of the present order, the General Court was not required to examine those facts, since it concluded that the application was inadmissible.
110. It follows that the twelfth ground of appeal must therefore be rejected as clearly unfounded.
Thirteenth ground
Arguments of the parties
111. By his thirteenth ground, the appellant claims that the General Court was wrong in concluding, in paragraph 83 of the order appealed against, that the administrative order did not affect his legal position.
112. According to the Commission, the thirteenth ground raised by the appellant is a repetition of the fourth and fifth grounds and must therefore be rejected for the same reasons as those which it put forward in relation to those grounds.
Findings of the Court
113. By his thirteenth ground, which is specific to the claim for damages, the appellant essentially reproduces the arguments put forward in connection with the fourth and fifth grounds, to the effect that his legal position was affected by the administrative order at issue.
114. The thirteenth ground of appeal must therefore be rejected as clearly unfounded for the same reasons as those set out at paragraphs 56 to 63 above.
Fourteenth and fifteenth grounds
Arguments of the parties
115. By his fourteenth and fifteenth grounds, which are specific to the claim for damages and must be dealt with together, the appellant claims that the General Court incorrectly assessed the Commission’s scope for intervention in the management of the project ‘Value Chain Mapping Analysis’, in particular as regards the experts’ remuneration.
116. The appellant claims that the General Court distorted the clear sense of the evidence produced to it by referring, in paragraph 31 of the order appealed against, to the ‘instructions and explanations that had been provided to him’. The reference to those instructions and explanations does not correctly reflect the role played by the Commission in the supervision of the appellant’s work.
117. The General Court also concluded, wrongly, that the Commission could not intervene, under its powers as a public authority, in the contractual relationship between the appellant and AESA in order to alter his remuneration.
118. According to the Commission, those grounds must be rejected in so far as the appellant has not demonstrated the existence of a ‘substantive inaccuracy’ or of a distortion, by the General Court, of the clear sense of the evidence produced to it.
Findings of the Court
119. As was recalled in paragraph 70 of the present order, the Court of Justice has no jurisdiction, save where the facts have been distorted by the General Court, to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts.
120. It must be stated that the appellant has not demonstrated in what respect the General Court distorted the clear sense of the evidence produced to it with regard to the Commission’s scope for intervention in connection with the project ‘Value Chain Mapping Analysis’. In those circumstances, the line of argument put forward by the appellant in those fourteenth and fifteenth grounds constitutes a mere allegation.
121. The fourteenth and fifteenth grounds must therefore be dismissed as clearly unfounded.
Sixteenth ground
Arguments of the parties
122. The appellant claims that the General Court erred in law in denying the existence of a causal link between the making of the administrative order at issue and the damage suffered by the appellant.
123. According to the appellant, that administrative order is definitely the cause of the damage suffered, in so far as it contained a negative and incorrect assessment of his professional performance, was issued after the end of specific contract 2007/146271 and was made in an unlawful manner.
124. Against that background, the General Court wrongly concluded that the administrative order in question produced legal effects only vis‑à‑vis AESA.
125. The appellant points out that, moreover, his claim for damages of a sum of EUR 500 is not related to his contractual fees.
126. According to the Commission, the appellant has not demonstrated that the alleged errors committed by the General Court in the appraisal of the facts were sufficiently grave for them to be penalised by the Court of Justice in the present appeal.
Findings of the Court
127. In that regard, it must be recalled that the principles common to the laws of the Member States to which the second paragraph of Article 340 TFEU refers cannot be relied upon to found an obligation on the Union to make good every harmful consequence, even a remote one, of conduct of its institutions (see, to that effect, Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier and Others
v Council
[1979] ECR 3091, paragraph 21; Joined Cases C-363/88 and C‑364/88 Finsider and Others
v Commission
[1992] ECR I‑359, paragraph 25; and Trubowest Handel and Makarov
v Council and Commission
[2010] ECR I‑0000, paragraph 53). The condition under the second paragraph of Article 340 TFEU relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the institutions and the damage, the burden of proof of which rests on the applicant. The conduct complained of must therefore be the determining cause of the damage (see, to that effect, Trubowest Handel and Makarov v Council and Commission, cited above, paragraph 53 and case‑law cited).
128. Moreover, it must be recalled that, according to settled case-law, by virtue of Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts (see to that effect, among others, Case C-283/90 P Vidrányi
v Commission
[1991] ECR I‑4339, paragraph 12, and order in Case C‑19/95 P San Marco
v Commission
[1996] ECR I-4435, paragraph 39).
129. In paragraphs 81 to 84 of the order appealed against, the General Court examined whether, in this case, there was a sufficiently direct causal nexus between the damage allegedly suffered by the appellant and the conduct for which the Commission is criticised.
130. It found, first of all, that the loss pleaded by the appellant corresponded to the remuneration due for work carried out by him under the contract between himself and AESA. The General Court inferred from this that the Commission could not in law intervene in regard to the appellant’s remuneration, since that remuneration was governed by the contract concluded between the applicant and AESA. The General Court therefore concluded that the loss pleaded was the result, not of the Commission’s allegedly unlawful conduct, but of AESA’s refusal to remunerate the appellant for the work which he claimed to have performed.
131. It follows from the assessments made by the General Court that it was fully entitled to find that there was no sufficiently direct causal nexus between the Commission’s conduct and the losses pleaded by the appellant. For such a causal link to be established, it is necessary that the damage was actually caused by the conduct of the institutions.
132. This approach is confirmed by the settled case-law referred to in paragraph 127 of the present order that, even in the case of a possible contribution by the institutions to the damage for which compensation is sought, that contribution might be considered too remote because of some responsibility resting on others.
133. Consequently, the sixteenth ground of appeal must be rejected as manifestly unfounded.
134. Since none of the grounds of appeal can be upheld, the appeal must be dismissed, without there being any need to have recourse to the measure of inquiry requested by the appellant.
Costs
135. Under Article 69(2) of the Rules of Procedure, which, pursuant to Article 118 of those rules, applies to the procedure on appeal, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs of the appeal.
Operative part
On those grounds, the Court (Fifth Chamber) hereby orders:
1. The appeal is dismissed.
2. Mr Mauerhofer shall pay the costs.