JUDGMENT OF THE GENERAL COURT (Third Chamber)
18 December 2024 (*)
( Award of grants in the field of defence – EDF – Funding of research actions – Call for proposals EDF‑2021-MCBRN-R – Rejection of the applicant’s proposal on account of non-compliance with the admissibility conditions and criteria – Obligation to state reasons – Principle of sound administration – Right to be heard – Error of assessment )
In Case T‑134/23,
Institut Jožef Stefan, established in Ljubljana (Slovenia), represented by A. Bochon, lawyer,
applicant,
v
European Commission, represented by R. Tricot, E. Stamate and T. Isacu de Groot, acting as Agents,
defendant,
THE GENERAL COURT (Third Chamber),
composed of P. Škvařilová-Pelzl, acting as President, G. Steinfatt (Rapporteur) and D. Kukovec, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure,
further to the hearing on 3 July 2024,
gives the following
Judgment
1        By its action brought pursuant to Article 263 TFEU, the applicant, Institut Jožef Stefan, coordinator of the PANDORA consortium, seeks annulment of the Decision of the European Commission of 3 January 2023 rejecting the project proposal with reference 101075036-PANDORA (‘the project proposal’), submitted in response to European Defence Fund (EDF) call for proposals EDF‑2021-MCBRN-R (‘the contested decision’).
Background to the dispute
2        The project proposal was submitted in connection with the EDF, which is one of the new funding programmes of the European Union falling under the 2021-2027 Multiannual Financial Framework.
3        Grants under that programme are governed by the rules and procedures established in Regulation (EU) 2021/697 of the European Parliament and of the Council of 29 April 2021 establishing the EDF and repealing Regulation (EU) 2018/1092 (OJ 2021 L 170, p. 149) (‘the EDF Regulation’) and Regulation (EU, Euratom) 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 (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) (‘the Financial Regulation’).
4        In accordance with Article 24 of the EDF Regulation, the EDF is to be implemented by means of annual work programmes adopted by the Commission by means of implementing acts, which are published once a year and structured according to a certain number of categories of thematic and horizontal actions. The work programmes are to set out in detail the research topics and the categories of actions to be supported by the EDF.
5        On 30 June 2021, the Commission adopted the Implementing Decision on the financing of the European Defence Fund established by Regulation (EU) No 2021/697 of the European Parliament and the Council and the adoption of the work programme for 2021 (C(2021) 4910 final).
6        The topics and actions set out in the work programme were subsequently implemented through calls for proposals published on the EU ‘Funding & Tenders Portal’, which contain the legal framework and conditions for the calls for proposals.
7        Point 3 of the work programme sets out the actions to be implemented in 2021. Point 3.1 provides for a category of actions entitled ‘Defence medical response, Chemical Biological Radiological Nuclear (CBRN), biotech and human factors (MCBRN)’. It states that that category of actions will lead to two calls for proposals in 2021.
8        The first call for proposals is referred to in point 3.1.1 of the work programme and is entitled ‘EDF‑2021-MCBRN-R: Capabilities for CBRN risk assessment, detection, early warning and surveillance’ (‘the call for proposals’). It is provided for that the call for proposals will relate to the topic set out in point 3.1.1.1, under the heading ‘EDF‑2021-MCBRN-R-CBRNDIM: Detection, identification and monitoring (DIM) of CBRN threats’. It is that call for proposals which is at issue in the present case.
9        On 6 September 2021, the call for proposals was opened for submissions on the ‘Funding & Tenders’ portal. The closing date for the submission of proposals was set at 9 December 2021.
10      The applicant is a research institute governed by Slovenian law.
11      On 9 December 2021, the applicant submitted the project proposal in the name of the PANDORA consortium, which, in addition to the applicant itself, was composed of CIC Biomagune (Spain), the Centre national de recherche scientifique (France) (‘the CNRS’), Analitica (Slovenia) and Euskontrol (Spain).
12      On 20 July 2022, the applicant received a letter rejecting the project proposal as inadmissible (‘the letter of 20 July 2022’). That letter reads as follows:
‘Having examined your proposal, we regret to inform you that – on the basis of the information you provided – it is unfortunately inadmissible, since it does not contain all parts and mandatory Annexes and supporting documents, thereby not meeting the admissibility criteria set out in the EDF 2021 calls for proposal, conditions for the calls and annex.’
13      On 7 August 2022, in accordance with the instructions provided in that letter, the applicant contacted the Commission to request a review of the project’s admissibility, claiming that all the required documents had been submitted in due time.
14      By email of 3 January 2023, the applicant was sent the contested decision, which read as follows:
‘The Committee examined your request for admissibility review of your proposal.
No supporting documents were submitted related to Annex 6.
As an example, the Corporate Governance was not sufficiently described to detail the following elements:
–        Information about the Decision-making bodies in the companies and their composition
–        The relevant rules regarding election, appointments, nomination of members at the decision-making bodies
–        The decision-making procedures.
Therefore, the proposal is incomplete and hence inadmissible.’
Forms of order sought
15      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
16      The Commission contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
17      In support of its action, the applicant raises four pleas in law, the first alleging, in essence, infringement of the rules governing the call for proposals, the second, infringement of the obligation to state reasons, the third, infringement of the principle of sound administration and the fourth, infringement of the right to be heard.
The first plea, alleging, in essence, infringement of the rules applicable to the call for proposals
18      In the first place, according to the applicant, in considering that supporting documents should have been submitted in relation to Annex 6, the Commission made an incorrect assessment of the content of the documents submitted with the project proposal.
19      It is clear from the case-law that when a party claims that a contested act is vitiated by a manifest error of assessment, the EU judicature must verify whether the author of that act has examined, carefully and impartially, all the relevant facts of the individual case, facts which support the conclusions reached.
20      The applicant did, however, submit all requisite documents and annexes. In both the letter of 20 July 2022 and the contested decision, the Commission rejected the project proposal on purely procedural grounds.
21      In the section relating to corporate governance, in Annex 6, the instructions do not, contrary to what the Commission infers from pages 12 and 74 of the EDF’s 2021 Guide for applicants (‘the guide for applicants’), require applicants completing that annex to provide supporting documents or additional documents, irrespective of the level of detail of the answer provided in that annex. The reference to ‘relevant corporate documentation’ is only meant to facilitate further checks by the Commission.
22      That conclusion is borne out by page 57 of the guide for applicants, which states, with reference to the Excel file format of Annex 6, that that format makes it possible to ‘attach supporting documents directly in the Excel file in order to ease further exploitation’.
23      Moreover, at the top of Annex 6 it is stated as follows:
‘Note: please be aware that, in addition to the information requested in this Annex, additional evidence may be requested by the Commission after the submission deadline (see relevant section of the guide for applicants).’
24      Annex 6 is meant to be an assessment tool for the Commission, in connection with control by a third country or third-country entity or control of a consortium by the same entity, as follows from page 56 of the guide for applicants. The section on corporate governance in Annex 6 requires each entity to describe ‘briefly’, meaning in a few words, its own corporate governance. It thus does not impose any minimum length for the answers provided.
25      It follows that, by contrast with other information that has to be provided with the project proposal and that cannot be amended or supplemented after the submission deadline, information on the ownership and control of applicants could be further supplemented or documented after the submission deadline. The Commission is thus mistaken to conclude that the candidates failed to fulfil a formal criterion of the call for proposals. On the contrary, it was under an obligation to request further information from the candidates before arriving at the conclusion that the information requested had not been provided at all.
26      The conclusion that there was no requirement to attach supporting documents to Annex 6 and that, in the absence of such documents, the Commission was obliged to examine the issue of corporate governance on the basis of the information provided in the Annex 6 tables alone, is also apparent from the contested decision itself. Indeed, if supporting documents had to be provided regardless of the information completed directly in Annex 6, the Commission could simply have indicated that the submission of supporting documents was an admissibility requirement, without going on to state that corporate governance had been insufficiently described in the tables in Annex 6.
27      Moreover, the Commission was also wrong to reject the project proposal on the ground that it was incomplete, whereas each of the five entities in the PANDORA consortium had provided an answer in the section on corporate governance.
28      In the second place, the applicant maintains, in essence, that if the Commission’s interpretation were to be accepted, all applicants would themselves have to determine whether supporting documents were necessary and, if so, which supporting documents were required for each answer provided in the annexes to the project proposal. The exact scope of the corporate documents that, according to the Commission, had to be provided remains vague. Thus, the broad and imprecise wording of the guide for applicants gives the Commission unlimited discretion to conclude that supporting documents did not provide satisfactory answers to the concerns that it claims to exist and opens the way to legal uncertainty and to the arbitrary rejection of applications.
29      In the third place, the applicant argues, in essence, that the Commission did not wish to take its project proposal into consideration. Having regard to the chronology of events following the submission of the project proposal, it is obvious that that proposal and its annexes were not reviewed at all after being submitted and that they were only examined after the applicant had asked for a review of admissibility.
30      The Commission disputes the applicant’s arguments.
31      In that regard, in the first place, it is apparent from recitals 18 and 54 and Article 8(3) and Article 11(1) of the EDF Regulation that the EDF may provide funding in accordance with the Financial Regulation, including through grants following competitive calls for proposals issued in accordance with that regulation.
32      Article 189 of the Financial Regulation provides that ‘grants shall be awarded following a publication of calls for proposals, except in the cases referred to in Article 195’.
33      Article 194(1)(b) and (d) of the Financial Regulation provides that calls for proposals must specify the eligibility, exclusion, selection and award criteria and the relevant supporting documents, as well as the arrangements and final date for the submission of proposals. Article 194(3) of that regulation provides that ‘calls for proposals shall be published on the website of Union institutions and by any other appropriate means, including the Official Journal of the European Union, where it is necessary to provide additional publicity among potential beneficiaries’.
34      Article 200 of the Financial Regulation concerns the evaluation procedure for calls for proposals. Article 200(1) of that regulation provides that ‘proposals shall be evaluated, on the basis of the pre-announced selection and award criteria, with a view to determining which proposals may be financed’. Article 200(2) provides that ‘the authorising officer responsible shall, where appropriate, divide the process into several procedural stages’, and that ‘the rules governing the process shall be announced in the call for proposals’. It also provides that ‘the applicants whose proposals are rejected at any stage shall be informed in accordance with paragraph 7’.
35      In accordance with Article 194(1)(b) and (d) of the Financial Regulation, the rules applicable to the call for proposals are indicated, in the present case, in Section 3 of the document of 26 November 2021 entitled ‘European Defence Fund – 2021 calls for proposals, conditions for the calls and annex’ (‘the conditions for the calls’). Section 3.2.1 sets out the procedure and Section 3.2.3 specifies the admissibility conditions for proposals.
36      As the conditions for the calls were expressly provided for by Article 189(1) and Article 194(1) of the Financial Regulation and published in accordance with Article 194(3) thereof (see paragraph 6 above), they are binding on both the Commission and the interested parties.
37      The conditions for the calls state, in Section 1.4.2, which is headed ‘Documents needed to apply’, that the submission form and its annexes are available via a link contained in that section. Under Section 3.2.3 of the conditions for the calls, which is headed ‘Admissibility conditions’, the proposals must, inter alia, be submitted electronically via the ‘Funding & Tenders’ portal, using the forms made available for that purpose in the electronic submission system. The structure and presentation must correspond to the instructions given in the forms. It follows that, like the conditions for the calls, those forms are binding. Besides, the applicant does not dispute the binding nature of the forms.
38      Section 3.2.3 of the conditions for the calls also states that applicants may usefully refer to the guide for applicants for more information, providing a link to that document. Section 1.4.3 of the conditions for the calls, which is headed ‘Additional documents’, also contains a link to that document. As regards the guide for applicants itself, it is stated in the introduction, under the heading ‘Important notice’, that it is designed to be the main practical reference document for applicants to prepare and submit their proposals. On pages 6, 7 and 8 of that guide, it is again stated that it is designed to help applicants fill out the submission form related to EDF 2021 calls for proposals, and that it is recommended to read it together with that form, the structure of which is followed by the guide, and with the conditions for the calls. It follows that the guide for applicants is a purely explanatory document and that the interpretation it gives of the submission form and its annexes, and of the conditions for the calls, is not binding on interested parties.
39      In the second place, as has already been stated in paragraph 35 above, Section 3.2.1 of the conditions for the calls, which is headed ‘Procedure’, sets out, in points (a) to (f), the stages of the procedure for calls for proposals. These concern admissibility, exclusion, eligibility, ethics, selection and award.
40      The admissibility stage is described as follows:
‘Determining if the received proposals meet the admissibility conditions (see Section 3.2.3). Proposals failing to meet admissibility conditions will be rejected, i.e. only proposals meeting the admissibility conditions will be subject to further assessment’.
41      As regards the admissibility conditions, which are set out in section 3.2.3 of the conditions for the calls, these state inter alia that applications must be submitted before the final date for submission and that they must be complete and contain all parts and mandatory annexes and supporting documents, including the supplement to part A and its eight annexes as well as part B of the submission form which must be filled in offline and, once completed, submitted online, together with all requested supporting documents.
42      Furthermore, it is stated in bold, on page 189 of the conditions for the calls, that failure to comply with those conditions will lead to rejection of the proposal.
43      It clearly follows that if a proposal does not satisfy all the admissibility conditions, the Commission is obliged to reject it as inadmissible.
44      In the third place, all the mandatory documents must be provided with the project proposal within the time limit for submission of the proposal (see paragraph 41 above).
45      In that regard, the applicant has misinterpreted the note at the top of Annex 6. This states that, ‘in addition to the information requested in this Annex, additional evidence may be requested by the Commission after the submission deadline (see relevant section of the guide for applicants)’. In the light of the stages for the evaluation of proposals (see paragraph 39 above) and having regard to the objective pursued by Annex 6 – which is to enable the Commission to assess whether a grant applicant is controlled by a non-associated third country, or an entity of such a third country, or whether an applicant is controlled by the same entity as another member of the consortium, or whether the members of the consortium control each other – that note makes clear, in essence, that if, despite the applicant having provided in due time all of the information required by the Annex 6 form, the Commission is still in doubt as to the conclusions to be drawn concerning the ownership and control of the applicant, it may contact the applicant after the time limit has expired, in order to invite it to provide it with additional evidence. It does not follow, however, that applicants are not required to submit any supporting evidence relating to Annex 6 together with their project proposals.
46      On the contrary, the Annex 6 form itself states that applicants must provide certain supporting evidence. In particular, in the section headed ‘Shareholders’ agreement’, the form states ‘please attach the shareholders’ agreement or similar arrangements for the legal entity to this declaration’, footnote 8 defining the documents similar to a shareholders’ agreement as ‘Memorandum of Understanding among shareholders, Statutes, Articles of Association or other relevant documents regarding the taking of decisions within the company, investment agreements between the shareholders’. It is thus clear from the form itself that the obligation to submit those documents with the completed form – and in particular the documents concerning the entity’s decision-making process – was unconditional.
47      Accordingly, having regard to the conclusion reached in paragraph 43 above, the failure to provide even one mandatory item of information or one mandatory document necessarily results in the project proposal being inadmissible. That conclusion is further justified by the fact that the call for proposals relates to the field of defence and the fact that the objective of Annex 6 is – as, moreover, the applicant has observed (see paragraph 24 above) – to enable the Commission to assess whether a grant applicant is controlled by a non-associated third country, or an entity of such a third country, or whether an applicant is controlled by the same entity as another member of the consortium, or whether the members of the consortium control each other.
48      By contrast, if the admissibility conditions are satisfied, the Commission is obliged to assess the proposal on its merits.
49      The admissibility stage thus represents the exercise of a circumscribed power of the Commission (see, to that effect, judgments of 4 February 2016, Italian International Film v EACEA, T‑676/13, EU:T:2016:62, paragraphs 54, 55, 63 and 65, and of 15 February 2023, Aquind and Others v ACER, T‑492/21, EU:T:2023:67, paragraph 63).
50      Thus, the following steps of the applicant’s argument must be understood as seeking to establish that the Commission was wrong to determine that no mandatory supporting documents had been submitted in relation to Annex 6 and that, for example, insufficient detail had been provided as regards corporate governance (see paragraph 14 above).
51      However, it is apparent on examination of Annex 6 of the PANDORA consortium’s proposal that the members of that consortium failed to provide supporting documents and certain items of information that they were to have provided.
52      First, in the section concerning corporate governance, Annex 6 contains the following instructions:
‘Please describe briefly (and/or include detailed reference(s) to the sections/paragraphs of the relevant corporate documentation):
1.      The decision-making bodies in the company and their composition;
2.      The relevant rules regarding election, appointment, nomination or tenure of members of the decision-making bodies or other management positions;
3.      The decision-making procedures, including information regarding the required majority and/or quorum needed for decisions.’
53      The applicant is correct in observing that the use of the word ‘or’ in the wording of that section indicates that there is no obligation also to provide supporting documents or include detailed references to sections or paragraphs of the relevant corporate documentation of the undertaking. As regards that particular section, that is merely optional.
54      However, certain members of the PANDORA consortium did not provide all the information requested by the corporate governance section of the form. For example, the CNRS simply stated that it was a public institution, not a company. However, that fact cannot release it from the obligation to provide a brief description of its decision-making bodies, ‘the relevant rules regarding election, appointment, nomination or tenure of members of the decision-making bodies’ or persons occupying other management positions, and its decision-making procedures, including information regarding the required majority and/or quorum needed for decisions, or to include detailed references to the sections/paragraphs of the relevant documentation. As regards Analitica, it stated that since it was a small company, decisions were taken by the managing director of Analitica, and that the departmental heads made proposals about ongoing projects and optimisation of work organisation and led the execution of accepted decisions. In providing only that information, Analitica failed to cover the second point in the corporate governance section, namely the relevant rules regarding election, appointment, nomination or tenure of members of the decision-making bodies or persons holding other management positions, or to include detailed references to the sections/paragraphs of its relevant corporate documentation. As regards Euskontrol, the Annex 6 form states only the identity of its Chief Executive Officer (CEO) and General Coordinator of the Euskontrol group. Thus, the response provided by that member of the consortium does not cover any of the three points in that section, nor does it include detailed references to sections or paragraphs of its relevant corporate documentation.
55      Secondly, the section headed ‘Shareholders’ agreement’ states that ‘the shareholders’ agreement or similar arrangements for the legal entity’ are to be attached. Footnote 8 clarifies the expression ‘similar arrangements’ by listing the documents that might fall under that description. These are memoranda of understanding among shareholders, statutes, articles of association or other relevant documents regarding the taking of decisions within the company, and investment agreements between the shareholders .
56      However, none of the members of the consortium provided a shareholders’ agreement or similar documentation such as a memorandum of understanding between shareholders, statutes or other relevant documents regarding the taking of decisions within the company, or investment agreements between shareholders, despite such supporting evidence being expressly required by the form in the section headed ‘Shareholders’ agreement’ (see paragraphs 46 and 55 above). The statutes are particularly relevant in the case of the applicant, CIC Biomagune and the CNRS, which are not commercial companies. The failure to provide relevant documentation concerning the taking of decisions within the entities makes it impossible – as the Commission stated, in essence, in the contested decision – to verify how the members of the consortium are governed.
57      In the fourth place, the Commission cannot validly be criticised for stating in the contested decision that, besides the missing evidence in support of Annex 6, there was another aspect which had not been covered, in that no sufficient description of the corporate governance had been given. The three points set out in the contested decision are all part of the ‘Corporate Governance’ section of the form. While it may seem confusing that the reference to the lack of any sufficient description of the corporate governance is introduced by the expression ‘as an example’, which follows the conclusion that no supporting documents had been submitted in relation to Annex 6, it is clear that the Commission was finding, on the one hand, that no such documents had been submitted and, on the other, that no sufficient description of the corporate governance had been provided. While it would undoubtedly have been clearer if this second area of deficiency had been introduced in a different way, using an expression such as ‘furthermore’, ‘in addition’ and so forth, there is no doubt that the deficiencies making the proposal inadmissible were identified.
58      In the fifth place, the applicant cannot argue that the guide for applicants is vague. All the obligations of applicants had already been sufficiently set out in the conditions for the calls and the submission form.
59      In the sixth place, as the failure to provide this mandatory information or documentation necessarily leads to the proposal being inadmissible in its entirety, the Commission has no power to contact applicants individually so that they can supplement their proposals by providing information or supporting documentation that were to have been submitted with those proposals by the submission deadline.
60      In the seventh place, the applicant’s argument that the Commission did not wish to consider its proposal cannot succeed. Whatever substantive merit the proposal may have had, the Commission was obliged, by reason of the circumscribed power it was exercising in the present case, to reject it at the admissibility stage, given that supporting documents had not been submitted in relation to Annex 6 and certain points concerning corporate governance had not been addressed by certain members of the consortium.
61      Accordingly, the Commission did not err in its assessment of the applicant’s proposal.
62      The first plea must, therefore, be rejected.
The second plea, alleging infringement of the obligation to state reasons
63      The applicant argues that the reasons provided in the contested decision comprised only three sentences and were, therefore, insufficient to enable it to understand why its entire proposal was rejected.
64      The contested decision focusses on the section relating to corporate governance ‘as an example’, which reinforces the impression that the Commission did not wish to provide further detail covering all the reasons for the rejection. That wording suggests that there might have been other reasons for the rejection that were not mentioned.
65      As a result, the reasons for the rejection are entirely based on an alleged failure to ‘sufficiently describe’ the corporate governance of the bodies of the consortium members. The contested decision states that no supporting documents were submitted in relation to Annex 6 and concludes that the proposal was incomplete, and thus inadmissible, without identifying any legal basis for that conclusion.
66      The reasons given also fail to state what information or which documents provided under Annex 6 were deemed insufficiently complete in terms of the description of corporate governance. It is impossible to understand where there could be an alleged failure to provide the requested information, given that the relevant section on corporate governance was completed by all members of the PANDORA consortium. The reasons for the alleged insufficiency were not provided. Moreover, the reasoning in the contested decision is contradictory, in so far as the rejection of the proposal was based both on a lack of supporting documents and on alleged incompleteness of the information provided.
67      The Commission disputes the applicant’s arguments.
68      The second paragraph of Article 296 TFEU provides that legal acts are to state the reasons on which they are based.
69      The statement of reasons required by the second paragraph of Article 296 TFEU 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 the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on 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 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 judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 88 and the case-law cited, and of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 46).
70      In the present case, the contested decision is worded as follows:
‘No supporting documents were submitted related to Annex 6.
As an example, the Corporate Governance was not sufficiently described to detail the following elements:
–        Information about the Decision-making bodies in the companies and their composition
–        The relevant rules regarding election, appointments, nomination of members at the decision-making bodies
–        The decision-making procedures.
Therefore, the proposal is incomplete and hence inadmissible.’
71      That formulation makes it clear that the project proposal was rejected because it was incomplete. The Commission expressly stated that the missing documents related to Annex 6. As has already been explained in paragraph 57 above, the Commission cannot validly be criticised for stating in the contested decision, ‘as an example’, that another aspect of Annex 6 had not been covered, in that there was no sufficient description of the corporate governance. There can be no doubt that the deficiencies making the proposal inadmissible were identified in the contested decision.
72      Having regard to the clear requirements of the conditions for the calls and the Annex 6 form, the applicant was able clearly to identify the specific information and documents that were missing, even though the contested decision is worded succinctly.
73      It is apparent from the case-law that where a decision has been adopted in a context well known to the interested party, it may be reasoned in a summary manner (see judgment of 17 January 2017, Cofely Solelec and Others v Parliament, T‑419/15, not published, EU:T:2017:8, paragraph 61 and the case-law cited). Furthermore, a certain effort to interpret the reasons may be expected if the meaning of the text is not immediately clear, and Article 296 TFEU is not infringed if it is possible to resolve ambiguities in the statement of reasons by means of such interpretation (judgment of 12 December 1996, Rendo and Others v Commission, T‑16/91, EU:T:1996:189, paragraph 46; see also, to that effect, judgment of 24 September 2008, DC-Hadler Networks v Commission, T‑264/06, not published, EU:T:2008:400, paragraph 32).
74      The applicant was or ought to have been familiar with the rules applicable to the call for tenders in question, as they were all available via the ‘Funding & Tenders’ portal, which also had to be used to submit the proposal. Furthermore, it is apparent from page 5 of the project proposal that the applicant knew or ought to have known that the supporting evidence relating to control of the consortium members was required to be provided in Annex 6. Indeed, on that page, the applicant responded to questions relating to control of the consortium members. At the bottom of the part relating to the consortium members there is a note stating that ‘evidence [must be] provided in the proposal in Annex 6’.
75      The admissibility requirements for the project proposal were set out in Section 3.2.3 of the conditions for the calls and the form identified with sufficient precision to meet the legal standard the concrete information and supporting documents that were required to be submitted in and with the proposal. Section 3.2.1 of the conditions for the calls then set out the consequence of the project proposal not complying with those admissibility conditions. Having regard to the context known to the applicant, the fact that the legal basis was not stated in the contested decision does not mean that it was impossible for the applicant to know, with sufficient precision, why its proposal had been rejected. Indeed, it is apparent from the case-law that, where documents relating to the call for tenders or the call for proposals specify and clarify the requirements, a statement of reasons indicating rejection for failure to meet the criteria set out in those documents is regarded as sufficient (see, to that effect, judgments of 9 September 2010, Carpent Languages v Commission, T‑582/08, not published, EU:T:2010:379, paragraphs 42 and 43, and of 10 September 2019, BP v Court of Justice of the European Union, T‑51/18, not published, EU:T:2019:570, paragraph 25).
76      Furthermore, the letter of 20 July 2022 makes reference to the conditions for the calls, which set out the admissibility conditions, refer to the submission form and state the consequences of the tender failing to meet the admissibility conditions.
77      It follows that the statement of reasons in the contested decision clearly and unequivocally indicates the Commission’s reasoning, in a factual and regulatory context that was well known to the applicant.
78      It cannot, therefore, be complained that the Commission infringed the obligation to state reasons.
79      The second plea must, therefore, be rejected.
The third plea, alleging infringement of the principle of sound administration
80      According to the applicant, the right to sound administration requires the competent institution to examine carefully and impartially all the relevant aspects of the individual case. It follows from that right, the applicant submits, as well as from the procedure described in the guide for applicants, which as a set of guidelines can be relied on against the Commission, that since the applicant had provided all the requisite documents in due time, the Commission, before adopting the contested decision, could and should have asked it to provide additional explanations, if it considered that the information provided in Annex 6 was insufficient.
81      By failing to comply with its own guidelines, the Commission infringed the principle of sound administration.
82      The Commission disputes the applicant’s arguments.
83      The principle of sound administration entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgments of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 95 and the case-law cited, and of 8 October 2020, Union des industries de la protection des plantes, C‑514/19, EU:C:2020:803, paragraph 50 and the case-law cited; judgment of 21 February 2024, Greenspider v Eismea, T‑733/21, not published, EU:T:2024:104, paragraph 102).
84      In the present case, the Commission has not infringed that principle in any way. Indeed, it is apparent from Section 3.2.3 of the conditions for the calls that if a proposal does not satisfy all the admissibility conditions, the Commission is obliged to reject it as inadmissible. It inevitably follows that the failure to provide even one mandatory item of information or one mandatory document necessarily results in the project proposal being inadmissible. It has also been established that all the mandatory documents had to be provided together with the proposal by the deadline for submission of proposals. It is only supplementary evidence, that is to say evidence other than, or additional to, that which was to have been provided by the submission deadline with the proposal, that may be requested from the interested party on the initiative of the Commission (see paragraphs 41 to 44, 47 and 49 above).
85      It follows from paragraphs 44 to 46 above that no amendments or additions can be made after the submission deadline, unless the Commission contacts the applicant with a view to correcting obvious clerical errors or to clarify the contents of the proposal. As the Commission contends, in essence, the failure to provide mandatory information or supporting evidence cannot be regarded as an obvious clerical error. Equally, the Commission cannot correct such a failure by means of a request for clarification of the contents of the proposal, as such a request must relate to existing information or evidence, not information or evidence that is missing.
86      Furthermore, the first paragraph of Article 151 of the Financial Regulation states that the authorising officer responsible may correct obvious clerical errors in application documents after confirmation of the intended correction by the participant. In accordance with the second paragraph of Article 151 of that regulation, where a participant fails to submit evidence or to make statements, the authorising officer responsible is to ask the participant to provide the missing information or to clarify supporting documents. The third paragraph of Article 151 of that regulation provides that such information, clarification or confirmation must not substantially change application documents.
87      In the present case, if the Commission had asked the applicant to submit the missing supporting evidence, the applicant would have had an opportunity to supplement the project proposal, which would have been substantially changed. The submission of the missing evidence would have transformed a proposal which was incomplete, and therefore inadmissible, into a complete, admissible proposal (see, to that effect and by analogy, judgment of 6 October 2021, Global Translation Solutions v Parliament, T‑7/20, not published, EU:T:2021:649, paragraphs 61 to 63, and order of 28 February 2023, Telefónica de España v Commission, T‑170/22 R-RENV, not published, EU:T:2023:89, paragraphs 76 and 77).
88      In the interest of respecting the principles of transparency and of equal treatment, the possibility of requesting clarifications must be interpreted strictly.
89      It follows, as concluded in paragraph 59 above, that, since the failure to provide all the mandatory information or documents necessarily leads to the proposal being inadmissible in its entirety, the Commission has no power to contact applicants individually so that they can supplement their proposals by providing information or supporting documents that were to have been submitted with those proposals by the submission deadline.
90      The third plea must, therefore, be dismissed.
The fourth plea, alleging infringement of the right to be heard
91      According to the applicant, it was only by virtue of the contested decision that it was able to come to a partial understanding that the reason why its proposal was inadmissible was that insufficient detail had been provided in relation to Annex 6. The contested decision was not, however, amenable to an admissibility review, and so the applicant was not able to defend itself. The Commission was wrong to consider that the applicant had not provided all the documents when it submitted its project proposal, which it rejected on that ground by its letter of 20 July 2022. The Commission knowingly made an obvious mistake and, instead of giving the applicant an opportunity to answer its new claim that Annex 6 had not been completed sufficiently, it adopted the contested decision at a stage when no further review was possible. It disregarded the provisions of the guide for applicants, which clearly allow applicants to supplement their applications after the submission deadline with respect to all the information contained in Annex 6, and thus infringed the applicant’s right to be heard.
92      The Commission had full knowledge of the fact that the applicant was deprived of the first stage examination and that its application was only examined after the review request.
93      Furthermore, the contested decision did not declare the project proposal inadmissible on the ground that supporting documents were missing, but on the ground that an insufficient description had been given as regards corporate governance.
94      The Commission disputes the applicant’s arguments.
95      Observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard is inherent (see judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 28 and the case-law cited, and of 13 June 2024, C (Court-appointed administrators and liquidators), C‑696/22, EU:C:2024:499, paragraph 104).
96      The right to be heard is affirmed not only in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 of the Charter, which guarantees the right to good administration. Article 41(2) of the Charter of Fundamental Rights provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him or her adversely is taken (see judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 29 and the case-law cited; judgments of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 67, and of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 60).
97      The right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 31 and 39, and of 7 December 2018, GE.CO.P. v Commission, T‑280/17, EU:T:2018:889, paragraph 44).
98      The Courts of the European Union have stated that the right to be heard cannot be a concept of variable contours and thus applies regardless of who initiated the procedure in which it was invoked (see, to that effect, judgments of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraphs 73 to 75, and of 13 December 2018, De Loecker v EEAS, T‑537/17, not published, EU:T:2018:951, paragraphs 64 and 65).
99      In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision (judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 30, and of 7 December 2018, GE.CO.P. v Commission, T‑280/17, EU:T:2018:889, paragraph 44).
100    That right extends to all the factual and legal material which forms the basis of the decision, but not to the final position which the authority intends to adopt (judgments of 16 June 2015, Gako Konietzko v OHIM (Shape of a cylindrical container in red and white), T‑654/13, not published, EU:T:2015:381, paragraph 42, and of 17 April 2024, Insider v EUIPO – Alaj (in Insajderi), T‑119/23, EU:T:2024:253, paragraph 30). Thus, that right does not require that, before taking a final position on the assessment of the evidence submitted by a party, the authority must offer that party a further opportunity to comment on that evidence (judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 211).
101    The existence of an irregularity in the respect of that right can lead to the annulment of the contested measure only to the extent that there is a possibility that, in the absence of that irregularity, the administrative procedure might have resulted in a different result, thereby materially affecting the rights of defence of the party concerned. However, that party cannot be required to demonstrate that the contested decision would have been different, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself in the absence of the procedural error complained of (see, to that effect, judgments of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 210, and of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission, T‑301/20, EU:T:2023:93, paragraph 56).
102    On the other hand, it is for the party concerned to establish specifically how it would have been better able to ensure its defence in the absence of that procedural irregularity, without merely pleading that it was impossible for it to provide comments on hypothetical situations (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 79).
103    In the present case, in the first place, as follows from the rejection of the first plea, the Commission was obliged, by reason of the circumscribed power it was exercising, to reject the project proposal at the admissibility stage (see, in particular, paragraphs 49 and 60 above).
104    In the second place, it is apparent inter alia from paragraphs 41 and 43 to 45, 59 and 84 to 89 above that, contrary to the applicant’s submissions, it was not able to supplement its project proposal after the submission deadline by providing information or evidence that were to have been provided before the deadline.
105    In the third place, the applicant is wrong to submit that the contested decision did not declare the project proposal inadmissible on the ground that supporting documents were missing, but on the ground that an insufficient description had been given as regards corporate governance (paragraph 93 above). As has been established in paragraphs 57 and 71 above, the contested decision makes clear that the project proposal was rejected because it was incomplete. The Commission expressly stated that the missing documents related to Annex 6, and cannot validly be criticised for stating in the contested decision that, ‘as an example’, another aspect of Annex 6 had not been covered, in that there was no sufficient description of the corporate governance. There can be no doubt that the deficiencies making the project proposal inadmissible were identified in the contested decision.
106    In the fourth place, it is apparent from the letter of 20 July 2022 that the rejection to which it relates is based on the application being incomplete, having regard to the conditions for the calls. Bearing in mind the context as known to the applicant, it was easily possible for it to identify the missing documents.
107    The contested decision stated that the lack of supporting documents related to Annex 6 and added that the corporate governance had not been sufficiently described.
108    Even supposing that that level of detail ought to have been provided in the letter of 20 July 2022, the applicant has in no way demonstrated that it would thereby have been better able to defend itself, or indeed that it could not be totally ruled out that the contested decision would have been different. As has been explained notably in paragraphs 103 and 104 above, it is apparent both from the conditions for the calls and from the project proposal form that the proposals were required to be complete as regards the information and supporting evidence that was required to be submitted by the deadline and that it was not possible for applicants to add such evidence or information. While the Commission may invite applicants to provide supplementary information or documents, this does not include information or documents that should already have been provided in or with the proposal. If it were otherwise, the deadline for submitting proposals and the admissibility conditions themselves could be circumvented.
109    It follows that the Commission’s decision could not possibly have been different.
110    Consequently, the fourth plea must be rejected and, accordingly, the action must be dismissed in its entirety.
Costs
111    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
112    The applicant must, therefore, be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Institut Jožef Stefan to pay the costs.
Škvařilová-Pelzl
Steinfatt
Kukovec
Delivered in open court in Luxembourg on 18 December 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.