ORDER OF THE GENERAL COURT (Tenth Chamber)
4 March 2021 (*)
(Action for annulment – Framework Programme for Research and Innovation ‘Horizon 2020’ (2014-2020) – Grant agreement – Termination letter – Act coming within a purely contractual framework from which it is inseparable – Inadmissibility – Regulation (EU) No 1290/2013 – Loss of SME status)
In Case T‑132/20,
NEC OncoImmunity AS, established in Oslo (Norway), represented by T. Nordby, R. Bråthen and O. Brouwer, lawyers,
applicant,
v
Executive Agency for Small and Medium-sized Enterprises (EASME), represented by G. Niddam and A. Galea, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
APPLICATION primarily based on Article 263 TFEU seeking annulment of the decision allegedly contained in EASME's letter No Ares (2019) 7905893 of 23 December 2019 terminating the grant agreement concluded under the 'Horizon 2020' framework programme for research and innovation (2014-2020) and, in the alternative, an application based on Article 272 TFEU seeking a declaration that the terms of that agreement were breached,
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov, President, K. Kowalik-Bańczyk and G. Hesse (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Order
Background to the dispute
1        The ‘Horizon 2020’ framework programme for research and innovation (2014-2020) (the ‘Horizon 2020 Framework Programme’)
was established, on the basis of Articles 173 and 182 TFEU, by Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC (OJ 2013 L 347, p. 104), and by Regulation (EU) No 1
290/2013 of the European Parliament and of the Council of 11 December 2013 laying down the rules for participation and dissemination in ‘Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020)’ and repealing Regulation (EC) No 1906/2006 (OJ 2013 L 347, p. 81).
2        According to
Article 53(1) and (2) of Regulation No 1290/2013, only small and medium-sized enterprises (SMEs) may apply for calls for proposals issued under the dedicated SME instrument referred to in Article 22 of Regulation No 1291/2013. They may cooperate with other companies, research institutes or universities. Under that provision, once an undertaking has been validated as an SME, that legal status shall be assumed to prevail for the entire duration of the project, even in cases where the undertaking later exceeds the ceilings of the SME definition due to its growth.
3        In that context, the applicant, NEC OncoImmunity AS, formerly OncoImmunity AS, a Norwegian undertaking specialising in bio-informatics, entered into grant agreement No 850078 – Medivac (the ‘grant agreement’) with the Executive Agency for Small and Medium-sized Enterprises (EASME) under the Horizon 2020 Framework Programme. The applicant signed the grant agreement on 16 March 2019 and, after it was signed by EASME, that agreement entered into force. The project started on the first day of the month following the entry into force of the grant agreement, namely
on 1 May 2019, for a period of 30 months.
4        Under Article 50.3.1(b) of the grant agreement, ‘[EASME] may terminate the [grant agreement] if … a change to the beneficiary's legal, financial, technical, organisational or ownership situation is likely to substantially affect or delay the implementation of the action or calls into question the decision to award the grant’.
5        Article 55.2 of the grant agreement provides as follows:
‘The party seeking an amendment must submit a request for amendment signed in the electronic exchange system (see Article 52).
The request for amendment must include:
–        the reasons behind the request;
–        the appropriate supporting documents.
[EASME] may request additional information.
If the party receiving the request agrees, it must sign the amendment in the electronic exchange system within 45 days of receiving notification
(or any supplementary information [EASME]
has requested). If it does not agree, it must formally notify its disagreement within the same deadline. The deadline may be extended, if necessary for the assessment of the request. If no notification is received within the deadline, the request is considered to have been rejected.
An amendment enters into force on the day of the signature of the receiving party.
An amendment takes effect on the date agreed by the parties or, in the absence of such an
agreement, on the date on which the amendment enters into force.’
6        In accordance with Article 57.1 of the grant agreement, the agreement is governed by the applicable EU law, supplemented, if necessary, by the law of Belgium.
7        Under Article 57.2 of the grant agreement, ‘if a dispute concerning the interpretation, application or validity of the [agreement] cannot be settled amicably, the competent Belgian courts have sole jurisdiction.’
According to that same provision, ‘if a dispute concerns administrative sanctions, offsetting or an enforceable decision under Article 299 TFEU (see Articles 44, 45 and 46), the beneficiary must bring [an] action before the General Court – or, on appeal, the Court of Justice of the European Union – under Article 263 TFEU. Actions against offsetting and enforceable decisions must be brought against the Commission (not against [EASME]).’
8        By email of
14 June 2019, the applicant notified EASME of its possible acquisition by the Japanese multinational NEC. By that email, the applicant also requested clarification as to whether the contemplated transaction would affect the grant which had been awarded to it.
9        By email of the same day, EASME responded to the applicant stating that, to assess the contemplated transaction and the change to the company structure, it had
to provide
EASME with certain information.
10      By letter of
20 June 2019, having analysed the information provided by the applicant, EASME informed the applicant of its view that a company’s legal status as an SME could be assumed to continue
for the entire duration of the project, even after the applicant has exceeded the SME definition ceilings due to its growth, only in the case of ‘natural growth’ linked to economic developments or economic conjuncture and not as a result of mergers or acquisitions. EASME stated that, in the case of the applicant, it could terminate the grant agreement in accordance with Article 50.3.1(b) of that agreement by decision of the Responsible Authorising officer following a case-by-case analysis.
11      By email of
30 July 2019, the applicant notified EASME of the change of its ownership following its acquisition by NEC on 29 July 2019.
12      On
both 1 and 31 October 2019, the applicant provided additional information to EASME regarding its ownership structure following requests to that effect.
13      By letter of
6 November 2019, EASME informed the applicant of its intention to terminate the grant agreement, on the basis of Article 50.3.1(b) of that agreement. According to EASME, the applicant had lost the SME status required to be party to the project in question and to proceed with it. The applicant was invited to submit observations within 30 days of receipt of that letter.
14      By letter of
4 December 2019, the applicant set out its observations regarding EASME’s intention to terminate the grant agreement.
It claimed, in particular, that the intention expressed by EASME was based on an incorrect understanding of the Rules of Participation, of
Article 50.3.1(b) of the grant agreement, and of EASME’s own practice concerning that agreement and the Rules of Participation.
15      By letter of
23 December 2019, EASME notified the applicant
that the grant agreement was terminated and responded to the applicant’s observations of 4 December 2019 (the ‘termination letter’).
16      By letter of
15 January 2020, the applicant filed a complaint before EASME and requested that it reconsider its decision of 23 December 2019 to terminate the grant agreement.
17      By letter of
22 January 2020, EASME reminded the applicant that (i) following the procedure provided for in Article 50.3.2 of the grant agreement, its letter of
23 December 2019 terminated the grant agreement and (ii) the adversarial procedure provided for in Article 50.3.2 of the grant agreement had been closed and should not be reopened.
Procedure and forms of order sought
18      By application lodged at the Court Registry on 28 February 2020, the applicant brought the present action. In its application, the applicant asked Court to give priority treatment to the present case, pursuant to Article 67(2) of the Rules of Procedure of the General Court.
19      By letter of
25 March 2020, EASME requested, due to exceptional circumstances linked to the COVID-19 pandemic, an extension of the deadline for lodging its defence. The Court granted that request for an extension of the deadline.
20      By decision of 31 March 2020, the President of the Tenth Chamber of the Court dismissed the request for priority treatment.
21      On 25 June 2020, EASME lodged its defence.
22      By letter of
24 July 2020, the Court Registry informed the applicant that the Court had decided, pursuant to Article 83(1) of the Rules of Procedure of the General Court, that a second exchange of pleadings was unnecessary.
23      On 24 July 2020, by way of measures of organisation of procedure, the Court put questions to the parties.
24      On 10 August 2020, EASME replied to the Court’s questions.
25      On 10 August 2020, the applicant submitted a request to lodge a reply. It also lodged a request for measures of organisation of procedure and for measures of inquiry.
26      On 24 August 2020, the applicant responded to the Court’s questions within the time limit, which was extended following a request it submitted on 29 July 2020.
27      By decision of
14 September 2020, the President of the Tenth Chamber rejected the applicant’s request to lodge a reply.
28      On 7 October 2020, EASME submitted its observations on the request for measures of organisation of procedure and for measures of inquiry within the time limit, which was extended following a request it submitted on 28 September 2020.
29      The applicant claims that the Court should:
–        primarily, annul the alleged decision contained in the termination letter and, in the alternative, find that EASME breached the grant agreement;
–        order EASME to pay the costs.
30      EASME claims that the Court should:
–        primarily, reject the action
as inadmissible and, in the alternative, deem it unfounded in its entirety;
–        order the applicant to pay the costs.
Law
31      Under Article 126 of its Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is clearly inadmissible or is clearly lacking any foundation in law, the Court may, on proposal from the Judge-Rapporteur, decide at any time to give a decision by reasoned order without taking further steps in the proceedings, even if one of the parties has requested a hearing. In the present case, the Court, finding that it has sufficient information from the documents in the file, decides to rule on the application without taking further steps in the proceedings.
32      Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure, EASME claims that the action is inadmissible on the ground, first, that the letter of termination is not an act open to being contested for the purposes of Article 263 TFEU and, second, that the Court has no jurisdiction to hear and determine an action based on Article 272 TFEU.
33      The applicant challenges the pleas of inadmissibility raised by EASME.
34      In the first place, as regards the application based on Article 263 TFEU, brought as its primary submission, the applicant claims that the termination letter is a unilateral decision producing legal effects affecting its interests and its legal situation. The judicial review of that decision does not require an assessment of the contractual obligations in question or the execution of the grant agreement, to the extent that an examination of the termination letter relates only to the applicable eligibility criteria for obtaining a grant under Regulation No 1290/2013. According to the applicant, EASME exercised prerogatives of a public authority outside of its contractual relationship with the applicant, first by laying down the rules for participating in the Horizon 2020 Framework Programme in Regulation No 1290/2013, and then by interpreting them in the termination letter.
35      In those circumstances, Article 57.2 of the grant agreement, regarding dispute settlement, is not relevant. The first paragraph of Article 57.2 of the grant agreement is not
applicable, given that the dispute
does not relate to the interpretation, the application
or the validity of that agreement. The second paragraph of Article 57.2 of the grant agreement is not applicable either since the decision to terminate the agreement does not constitute an administrative sanction, offsetting or an
enforceable decision under Article 299 TFEU.
36      The applicant emphasises that the grant agreement does not contain provisions on the contractual effects of losing SME status. In its view, EASME is confusing its licence to terminate the grant agreement under Article 50.3.1 of that agreement with the eligibility criteria defined in Regulation No 1290/2013. The applicant claims that the situation is similar that in the case which gave rise to the judgment of 16 July 2020, ADR Center v Commission (C‑584/17 P, EU:C:2020:576). It takes the view, in the present case, that the loss of SME status is not included the grounds for terminating the grant agreement and that the contested act involves an interpretation of Article 53(2) of Regulation 1290/2013 which directly affects its legal situation. It claims that the judgment of 11 May 2017, KK v EASME (T‑376/15, not published, EU:T:2017:330) illustrates that an entity’s eligibility to receive a grant is not determined based on the contract, but on the rules laying down the eligibility criteria. A decision regarding an entity’s eligibility to receive a grant may therefore be subject to judicial review on the basis of Article 263 TFEU.
37      In the second place, regarding the application based on Article 272 TFEU, brought as its alternative submission, the applicant claims that, by incorrectly applying the eligibility criteria provided for in Regulation No 1290/2013 and by infringing the principle of equal treatment, EASME incorrectly interpreted and infringed the grant agreement. In that regard, the applicant claims that, in the termination letter, EASME made its intention clear and unequivocal to designate
the General Court as the court with jurisdiction to hear and determine disputes arising between the parties.
Furthermore, that intention was reiterated in its letter of
22 January 2020. The applicant’s intention to submit
the dispute to the jurisdiction of the General Court is evidenced by its statement set out in the letter of 24 December 2020 according to which it was contemplating bringing an action under Article 272 TFEU. That intention was confirmed by the fact that it effectively brought an action in the alternative on the basis of Article 272 TFEU. In the applicant’s view, the intention thus expressed by the parties to confer the Court with jurisdiction constitutes an arbitration clause within the meaning of Article 272 TFEU and
takes precedence over Article 57.2 of the grant agreement. In addition, the applicant maintains that the termination letter is a decision within the meaning of Article 288 TFEU, according to which a decision is binding in its entirety. The applicant claims that it may therefore base its action on EASME’s declaration in the termination letter that bringing an action before the Court on the basis of Article 272 TFEU was an appropriate remedy against that letter, forming an integral part of the decision. It takes the view that citizens must be able to trust the decisions adopted by the EU agencies, failing which the principle of sound administration would be infringed. The applicant adds that it would be undesirable for national courts or tribunals to rule on a question of EU law which should be uniformly decided.
38      It is first of all necessary to determine whether the termination letter may be subject to an action for annulment under Article 263 TFEU and, second, if not, to determine whether the grant agreement contains a clause conferring the Court with jurisdiction to rule on the current dispute on the basis of Article 272 TFEU.
The applicant's primary application based on Article 263 TFEU
39      It should be borne in mind that an action for annulment under Article 263 TFEU is generally available against all acts adopted by the EU institutions, bodies, offices and agencies, whatever their nature or form, which are intended to produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal situation (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 16; of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 71; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 62).
40      The objective of an action for annulment is to ensure observance of the law in the interpretation and application of the FEU Treaty and it would therefore be inconsistent with this objective to interpret the conditions under which the action is admissible so restrictively as to limit the availability of this procedure to the categories of acts referred to by Article 288 TFEU alone (judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 17, and order of 20 April 2016, Mezhdunaroden tsentar za izsledvane na maltsinstvata i kulturnite vzaimodeystvia v Commission, T‑819/14, EU:T:2016:256, paragraph 33).
41      The fact remains that that power of interpretation and application of the provisions of the Treaty by the EU judicature does not apply where the applicant’s legal position falls within the contractual relationships whose legal status is governed by the national law agreed to by the contracting parties (see order of 20 April 2016, Mezhdunaroden tsentar za izsledvane na maltsinstvata i kulturnite vzaimodeystvia v Commission, T‑819/14, EU:T:2016:256, paragraph 34 and the case-law cited; see also, to that effect, judgment of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 72).
42      Were the EU judicature to hold that it had jurisdiction to hear and determine disputes relating to the annulment of acts falling within a purely contractual framework, not only would it risk rendering Article 272 TFEU – which grants the Courts of the European Union jurisdiction pursuant to an arbitration clause – meaningless, but it would also risk, where the contract does not contain such a clause, extending its jurisdiction beyond the limits laid down by Article 274 TFEU, which specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the European Union is a party (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 19; of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 73; and of 16 July 2020, ADR Center v Commission,
C‑584/17 P, EU:C:2020:576, paragraph 64).
43      It follows that, where there is a contract between the applicant and one of the EU institutions, an action may be brought before the EU judicature on the basis of Article 263 TFEU only where the contested act aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the contracting institution acting in its capacity as an administrative authority (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 20;
of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 74; and
of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 65).
44      In the present case, it is necessary to examine whether the alleged decision contained in the termination letter may be subject to an action for annulment under Article 263 TFEU, or whether it is instead contractual in nature.
45      In that regard, it is common ground that the applicant and EASME entered into the grant agreement at issue and that their legal relationship is governed by that agreement. The applicant signed the grant agreement on 16 March 2019 and, in accordance with Article 58, it entered into force after it was signed by EASME.
46      It follows from the termination letter and the list of arguments attached thereto that EASME took the view that the applicant had lost SME status on the day that it was acquired by the undertaking NEC. It took the view that, owing to that change of status, it could terminate the grant agreement in accordance with Article 50.3.1(b) thereof. As stated in that provision, EASME may terminate the agreement if a change to the beneficiary’s legal, financial, technical, organisational or ownership situation is likely to call into question the decision to award the grant. EASME also stated that it maintained its position, as contained in the letter of
6 November 2019, that the loss of the applicant’s SME status called into question the decision to award the grant.
47      In other words, following the change to the beneficiary's legal, financial, technical, organisational and ownership situation, which took place on 29 July 2019, EASME decided to invoke the contractual right conferred on it by Article 50.3.1(b) of the grant agreement.
Therefore, it should be held that, in terminating the grant agreement, EASME acted within the rights and obligations arising from the grant agreement which allowed for it to be terminated unilaterally. By its very nature, the decision to terminate the grant agreement does not constitute a decision which is able to be the subject of an action for annulment under Article 263 TFEU (see, to that effect, judgment of 10 April 2013, GRP Security v Court of Auditors, T‑87/11, not published, EU:T:2013:161, paragraph 30).
48      There is nothing in the applicant’s submissions to enable the consideration that, by terminating the grant agreement, EASME acted in its capacity as an administrative authority exercising prerogatives of a public authority.
49      First, it is true that,
in the termination letter, EASME mentioned terminating the grant agreement in accordance with Article 50.3.1(b) of that agreement, read in light of Article 53(2) of Regulation No 1290/2013. However, the mere fact that EASME made reference to Regulation No 1290/2013 in the termination letter does not make that termination, which is purely contractual in nature, an act of a public authority. There is nothing to prevent the contracting parties, in their contractual relations, from referring to the relevant legal provisions without that having any effect whatsoever on their legal relationship.
50      In the present case, Article 53(2) of Regulation No 1290/2014
does not empower EASME to adopt unilateral acts such as the one at issue here.
51      It must be borne in mind that the mere invocation of legal rules which do not flow from the grant agreement but which are binding on the parties cannot have the consequence of altering the contractual nature of the dispute and of thus removing it from the jurisdiction of the competent court. If it were otherwise, the nature of the dispute and, consequently, the court having jurisdiction, would change according to the rules invoked by the parties, something which would run counter to the rules of the various courts and tribunals governing jurisdiction ratione materiae (judgment of 20 May 2009, Guigard v Commission, C‑214/08 P, not published, EU:C:2009:330, paragraph 43).
52      Second, the applicant cannot claim that the grant agreement does not contain provisions regarding the contractual effects of losing SME status. In the present case, the loss of the applicant’s SME status followed a change to its legal, financial, technical, organisational and ownership situation. According to the grant agreement, if it was likely to call into question the decision to award the grant, such a change could lead to that agreement being terminated unilaterally by EASME. Therefore, contrary to the applicant’s assertion, it has not been established that EASME confused its option to terminate the grant agreement under Article 50.3.1 thereof with the Rules of Participation in the Horizon 2020 Framework Programme defined in Regulation No 1290/2013. EASME’s unilateral termination of the agreement does not therefore involve the exercise of prerogatives of a public authority. That argument must, therefore, be rejected.
53      Third, in the judgment of 16 July 2020, ADR Center v Commission (C‑584/17 P, EU:C:2020:576), cited by the applicant, the Court found that the contested decision did not arise from the grant agreements at issue, but that it was instead an enforceable decision based on Article 299 TFEU, read in conjunction with Article 79(2) of Regulation (EU, Euratom) No 966/2012
of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1). In contrast, in the context of the present case, as the applicant itself admitted in paragraph 11 of its response to the Court’s questions, the decision to terminate the grant agreement is not an enforcement decision under Article 299 TFEU. It must therefore be held that the contested act in the case giving rise to that judgment of the Court is by nature different to that which differentiates the present case. Accordingly, the conclusion drawn in that case cannot be transposed to the present case. The applicant’s argument in that regard must therefore be rejected.
54      Similarly, the applicant’s argument based on the judgment of 11 May 2017, KK v EASME (T‑376/15, not published, EU:T:2017:330) is not convincing. In that case, the undertaking made three proposals as part of the call for proposals published by EASME. That undertaking’s second and third proposals had been declared ineligible on the ground that, in essence, they infringed the single submission rule. The undertaking hence submitted a complaint to EASME.
In accordance with Article 16 of Regulation No 1290/2013, EASME offers undertakings who are of the view that the evaluation of their proposal infringed the procedures laid down in that regulation – either in the work programme or in the call for proposals – the possibility to request that the evaluation be reviewed. That complaint was therefore put to the EASME Review Committee. Following the evaluation review procedure, EASME had informed that undertaking that its complaint had been rejected and had confirmed the ineligibility of the contested proposal. It was the
annulment of that decision which was sought under Article 263 TFEU. It must therefore be held that, unlike in the present case, the contested act in the case referred to above did not have a contract as its legal basis and was therefore not part of a contractual relationship between that undertaking and EASME. Therefore, that case-law is not relevant in the present case. The applicant’s argument must be rejected.
55      It follows from the foregoing that the termination letter clearly does not produce legal effects stemming from EASME exercising prerogatives of a public authority, but must, on the contrary, be regarded as being inseparable from the contractual relationship existing between EASME and the applicant. Consequently, that letter cannot be subject to an action for annulment on the basis of Article 263 TFEU.
56      It follows that the applicant’s claim seeking the annulment of the termination letter must be rejected as manifestly inadmissible.
The applicant’s alternative application based on Article 272 TFEU
57      In the present case, the grant agreement contains no clause conferring the General Court with jurisdiction to hear and determine disputes which may arise as to its interpretation, its application or its validity. On the contrary, the dispute settlement clause, contained in Article 57.2 of the grant agreement, expressly confers the Belgian courts with jurisdiction to hear and determine any dispute between EASME and the beneficiary which may arise as to the interpretation, the application or the validity of that agreement.
58      As is apparent from paragraphs 39 to 55 above, to the extent that EASME solely applied Article 50.3.1(b) of the grant agreement, the present dispute falls within the scope of Article 57.2 of that grant agreement.
59      Furthermore, it cannot be claimed that the sentence ‘if you consider that we are acting in breach of our contractual obligations, you may bring an action under Article 272 [TFEU]
against [EASME] before the General Court’ contained in the termination letter, derogated from or replaced the arbitration clause provided for in the grant agreement.
60      The procedure for amending the grant agreement is specified in Article 55.2 of that grant agreement. According to that provision, the request for amendment must be brought by the party concerned via the electronic exchange system and must contain the reasons for that amendment. The request must also include appropriate supporting documents. The other party must then either express its agreement or its disagreement within 45 days of receiving notification. If no notification is received in response within the deadline, the request is considered to have been rejected.
61      Under those circumstances, contrary to the applicant’s claim, the termination letter, the subsequent letter from EASME of
22 January 2020, the applicant's letter of
24 December 2019 whereby it was contemplating bringing an action under Article 272 TFEU and, finally, the applicant’s action brought, in the alternative, on the basis of Article 272 TFEU, are unable to establish the existence, either individually or taken together, of an arbitration clause conferring the General Court with jurisdiction to hear and determine the present dispute.
62      Neither EASME’s nor the applicant’s letters may be considered as a formal application for amendment of the grant agreement duly notified to the party concerned via the electronic exchange system. Similarly, there is nothing in the file to show that the amendment procedure provided for in the agreement and set out in paragraph 60 above has been followed in the present case, in order, in particular, with a view to amending the arbitration clause contained in Article 57.2 of the agreement. Therefore, the applicant’s argument that the alleged intention expressed in those letters
constitutes an arbitration clause, must be rejected.
63      The reference to Article 272 TFEU in the termination letter, however questionable it may be, cannot constitute a valid basis for bringing an action under Article 272 TFEU either, on the sole ground that it
forms an integral part of the contested decision contained in the termination letter. As is apparent from paragraphs 39 to 55 above, that letter is not an act open to being contested.
64      As regards the applicant’s argument that EASME infringed the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, suffice it to note that, although the incorrect reference in the termination letter is certainly questionable, Article 41 of the Charter of Fundamental Rights cannot, under any circumstances, provide a basis for the General Court’s jurisdiction to hear and determine the present dispute in the absence of an arbitration clause conferring it with such jurisdiction.
65      It follows from the foregoing that, in the absence of an arbitration clause, the General Court manifestly has no jurisdiction to hear and determine the present alternative application. It is for the Belgian courts to examine the legality of terminating the grant agreement, taking into account Regulation No 1290/2013 where appropriate. Were those courts to encounter difficulties in interpreting or applying that regulation, they may refer questions to the Court of Justice for a preliminary ruling under Article 267 TFEU.
66      Having regard to all the foregoing considerations, it should be declared that the termination letter is an act coming within a purely contractual framework from which it is inseparable. It follows from Article 57.2 of the grant agreement that the General Court manifestly has no jurisdiction to hear and determine it. Consequently, the action must be dismissed in its entirety on the ground, first, that it is manifestly inadmissible in so far as it is based on Article 263 TFEU and, second, that the General Court manifestly has no jurisdiction to hear and determine it in so far as it is based on Article 272 TFEU, without having to grant the applicant’s request for measures of organisation of procedure and for measures of inquiry.
Costs
67      Under Article 134(1) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
68      The General Court has decided not to apply Article 135(2) of the Rules of Procedure, which stipulates that it may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, to the extent that the applicant based its action primarily on Article 263 TFEU, regardless of the conduct of EASME.
69      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EASME.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby orders:
1.      The action as dismissed as inadmissible.
2.      NEC OncoImmunity AS is ordered to pay the costs.
Luxembourg, 4 March 2021.
E. Coulon
A. Kornezov
Registrar
President
*      Language of the case: English.