ORDER OF THE GENERAL COURT (Fifth Chamber)
15 February 2022 (*)
(Action for annulment – Financial provisions – EU programme on promoting safer use of the internet – Designation of the defendant – Inadmissibility)
In Case T‑304/21,
eSlovensko Bratislava, established in Bratislava (Slovakia), represented by B. Fridrich, lawyer,
applicant,
v
European Commission, represented by J. Estrada de Solà and S. Romoli, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking annulment of Commission Decision Ares(2021) 1953853 of 30 March 2021 to terminate the grant agreement concluded with the applicant concerning project 2015‑SK‑IA‑0038 (‘Slovak Safer Internet Centre IV’),
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann, President, U. Öberg (Rapporteur) and I. Gâlea, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        Given that the applicant, eSlovensko Bratislava, has
not provided, in the application, a coherent statement of the facts, this background is based largely on the presentation of the facts by the European Commission in its plea of inadmissibility.
2        On 20 October 2016, the Innovation and Networks Executive Agency (INEA), established by Commission Implementing Decision 2013/801/EU of 23 December 2013 establishing the Innovation and Networks Executive Agency, and repealing Decision 2007/60/EC as amended by Decision 2008/593/EC (OJ 2013 L 352, p. 65) and the applicant signed grant agreement No INEA/CEF/ICT/A 2015/1154788 (‘the grant agreement’) for the purposes of project
2015‑SK‑IA‑0038, entitled ‘Slovak Safer Internet Centre IV’ (‘the project’). The Grant Agreement was concluded in the context of the Connecting Europe Facility (CEF) programme, managed by INEA.
3        The project
was originally due to last
from 1 September 2016 to 28 February 2019; following an amendment, the completion date was then postponed to
30 June 2019. The applicant submitted to INEA a request for final payment relating to the whole duration of the project. After several exchanges, the applicant did not submit the required supporting evidence and documents, and INEA informed it that the request for final payment had been rejected.
4        In 2019 and 2020, a number of written exchanges followed concerning, inter alia, the merits of the applicant’s requests for payment and INEA decided, by letter of 30 March
2021 bearing reference Ares(2021) 1953853 (‘the contested decision’), to terminate the action.
Procedure and forms of order sought
5        By application lodged at the Court Registry on 30 May 2021, the applicant brought the present action.
6        In the application, the applicant claims that the Court should:
–        annul the contested decision;
–        suspend the operation of the contested decision;
–        refer the case back to the Commission ‘and INEA and [declare the] project
and Grant Agreement as valid and not terminated’;
–        order the Commission to pay the costs.
7        By separate document lodged at the Court Registry on 29 September 2021, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court. It contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
8        Pursuant to
Article 130 of the Rules of Procedure, where, by separate document, the defendant applies to the Court for a decision on inadmissibility or lack of competence without going to the substance of the case,
the Court must decide on the application as soon as possible, where necessary after opening the oral part of the procedure. Furthermore, under Article 126 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
9        In the present case, the Court, considering that it has sufficient information from the documents in the file, decides to give a decision without taking further steps in the proceedings, even though the applicant has requested that a hearing be held.
10      The Commission contends that the action is inadmissible in so far as it is directed against it. Furthermore, in the Commission’s view, the action is inadmissible under Article 263 TFEU, in so far as only measures producing binding effects falling outside of the contractual relationship between the parties and involving the exercise of the prerogatives of a public authority may be annulled under that article, which is not the case here. The action is also inadmissible under Article 76(d) of the Rules of Procedure, since the application does not satisfy the requirements laid down in that article. Last, the application to suspend the operation of the contested decision is, in the Commission’s view, inadmissible under Article 156 of the Rules of Procedure, since it was not made
by separate document.
The plea of inadmissibility based on the designation of a defendant other than the author of the contested decision
11      The Commission contends that the action against the contested decision should not have been directed against it. It should have been directed against the European Health and Digital Executive Agency (HaDEA), since the grant agreement was concluded under the CEF programme, managed by INEA, the rights and obligations of which were assigned
to HaDEA.
12      While it is true that the contested decision was adopted under the CEF programme, managed by INEA, under Article 1 of Implementing Decision 2013/801, the statute of INEA is governed by Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2013 L 11, p. 1) (1). Under Article 4(2) of that regulation, ‘an executive agency shall have legal personality [and in] each of the Member States, it shall enjoy the most extensive legal capacity accorded to legal persons under national law. It may, in particular, acquire or dispose of movable and immovable property and be a party to legal proceedings’.
13      Under Commission Implementing Decision (EU) 2021/173 of 12 February 2021 establishing the European Climate, Infrastructure and Environment Executive Agency, the European Health and Digital Executive Agency (HaDEA), the European Research Executive Agency, the European Innovation Council and SMEs Executive Agency, the European Research Council Executive Agency, and the European Education and Culture Executive Agency and repealing Implementing Decisions 2013/801/EU, 2013/771/EU, 2013/778/EU, 2013/779/EU, 2013/776/EU and 2013/770/EU (OJ 2021 L 50, p. 9), INEA was replaced by HaDEA concerning the implementation of a series of programmes, including the CEF programme. HaDEA gained full operational capacity for the CEF programme from 1 April 2021, in accordance with
Article 22 of that implementing decision.
14      Pursuant to
Article 16(1) of Implementing Decision 2021/173, ‘where legacy activities are transferred between agencies or from the Commission to an agency …, all files and legal commitments shall be automatically taken over, by virtue of this Decision, by the agency established by this Decision. That agency shall be subrogated in all the respective rights and obligations’. According to
Article 2 of the same
implementing decision, ‘legacy’ means residual activities resulting from commitments from the implementation of EU programmes under the 2014‑2020 MFF and earlier MFF periods. The CEF programme constituting such legacy, it was transferred from INEA to HaDEA, which is therefore subrogated in all the rights and obligations of INEA.
15      Given that, on the one hand, the parties to the grant agreement, INEA and the applicant, both have legal personality and are therefore vested with the rights and obligations arising from that agreement and that, on the other, HaDEA was subrogated in the rights and obligations arising from that agreement from 1 April 2021, the action cannot be directed against the Commission, but must be directed against HaDEA.
16      According to settled case-law, the mistaken designation in the application of a defendant other than the body which adopted the contested measure does not render the application inadmissible if the application
contains information which makes it possible to identify unambiguously the party against whom it is made, such as the designation of the contested measure and the body responsible for it. In such a case, the defendant must be considered to be the body responsible for the contested measure, even if not referred to in the introduction to the application. That situation must however be distinguished from the case
in which the applicant persists in the designation of the defendant referred to in the introduction to
the application, in full awareness of the fact that that defendant is not the author of the contested measure. In the latter case, the Court must treat as defendant the party designated in the application and, where appropriate, draw the necessary consequences of that designation in so far as concerns the admissibility of the action (judgments of 12 November 2015, Elitaliana v Eulex Kosovo, C‑439/13 P, EU:C:2015:753, paragraph 73; of 4 October 2018, Constantinescu v Parliament, T‑17/17, EU:T:2018:645, paragraph 33; and order of 6 November 2018, Chioreanu v ERCEA, T‑717/17, EU:T:2018:765, paragraph 38).
17      In the present case, while it is true that paragraph 1 of the application does not identify the defendant since it indicates, under the heading ‘Defendant(s) represented by’, the applicant’s own lawyers, the fact remains that the application states several times that the action seeks annulment of the ‘Commission’s decision’. Furthermore, in its observations on the plea of inadmissibility, the applicant persisted in designating the Commission as the author of the contested decision and the defendant in the action.
18      It follows that, the applicant having designated a defendant other than the author of
the contested decision, the application is inadmissible.
19      It is nevertheless necessary to examine whether, even if the action were to be regarded as having been brought against HaDEA, it would still be inadmissible on the ground that the application was not in conformity with Article 76(d) of the Rules of Procedure.
The plea of inadmissibility under Article 76(d) of the Rules of Procedure
20      According to the Commission, the application does not provide any summary or intelligible explanation of the facts allegedly supporting its claim; conversely, the few references to the facts of the case are thrown in the middle of its pleas in law. The essential points of law, moreover, are presented in such a manner that it is practically impossible to understand what the applicant’s complaints are and what the alleged conduct of the Commission
is on which those complaints are based. In its application, the applicant fails to make that necessary connection between the facts of the case and its pleas in law.
21      The applicant submits that, in paragraphs 19 to 26 of the application, it has set out the pleas in law and arguments relating to each of them consistently. The Commission’s objection of inadmissibility is based on a misunderstanding of the pleas and facts of the case.
22      First of all,
as regards the requirements under Article 76(d) and (e) of the Rules of Procedure, it should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the proceedings before the General Court in accordance with the first paragraph of Article 53 of that statute and Article 76(d) and (e) of the Rules of Procedure, an application must state, inter alia, the subject matter of the proceedings, a summary of the pleas in law and arguments relied on and the form of order sought by the applicant.
23      It is apparent from the case-law that that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its review. It follows that it is necessary that the basic legal and factual particulars, on which the action is based, be indicated coherently and intelligibly in the application itself. The application must, accordingly, specify the nature of the ground on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see orders of 27 March 2017, Frank v Commission, T‑603/15, not published, EU:T:2017:228, paragraph 38 and the case-law cited, and of 18 September 2018, eSlovensko v Commission, T‑664/17, not published, EU:T:2018:559, paragraph 29 and the case-law cited).
24      Thus, the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea in law on which it relies, and the General Court is not obliged, because of the lack of structure of the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application. The risk would be to reconstruct that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary both to the principle of the sound administration of justice and the principle that the subject matter of an action is delimited by the parties and to the defendant’s rights of defence (see order of 6 September 2009, Romańska v Frontex, T‑212/18, not published, EU:T:2019:581, paragraph 42).
25      In the present case, it must be held that those requirements have not been met.
26      First of all, as has already been stated in paragraph 1 of this order, the applicant has not provided, in the application, a coherent statement of the facts.
27      As regards the requirement of clarity of the pleas in law and arguments relied on, the applicant, in the part of the application devoted to the arguments in that regard, under the heading ‘IV. PLEAS IN LAW AND MAIN ARGUMENTS’, merely cites excerpts from Article 263 TFEU and certain judgments delivered by the Court of Justice concerning inter alia the scope of the review carried out by the General Court pursuant to that article. Those case-law citations are in no way related to the facts at issue or to the contested decision.
28      Nor, therefore, do the arguments put forward in that part of the application suffice to meet the requirements of clarity and precision of the pleas in law put forward, such as are laid down in Article 76(d) and (e) of the Rules of Procedure.
The heads of claim seeking to suspend the operation of the contested decision and to refer the case back to the Commission
29      In the application, the applicant requests the suspension of the operation of the contested decision on the ground that the immediate enforceability of the sum claimed by the Commission could compromise the survival of the organisation.
30      The Commission contends that that claim is inadmissible on the ground that it was not made by separate document.
31      It should be noted that, according to Article 156(5) of the Rules of Procedure, an application to suspend the operation of a measure must be made by separate document.
32      In the present case, that
application
was made in the application initiating proceedings.
33      It follows that it is inadmissible.
34      Furthermore, the applicant requests that the case be referred back to the Commission for a decision on the financial implications and the eligibility of the expenditure at issue.
35      The Commission contends that that request is inadmissible.
36      It should be noted that, by that request, the applicant requests, in essence, the Court to issue a direction to the Commission.
37      In accordance with settled case-law, however, in an action for annulment, the jurisdiction of the Courts of the European Union is limited to reviewing the legality of the contested measure and the Court may not, in the exercise of its jurisdiction, issue directions to institutions of the European Union (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited, and judgment of 17 June 2010, CEVA v Commission, T‑428/07 and T‑455/07, EU:T:2010:240, paragraph 56 and the case-law cited). It is for the institution concerned to take, under Article 266 TFEU, the measures necessary to comply with any judgment ordering annulment (see order of 12 March 2014, PAN Europe v Commission, T‑192/12, not published, EU:T:2014:152, paragraph 15 and the case-law cited).
38      Accordingly, that request
is inadmissible.
39      It follows from all the foregoing that the action must be dismissed as inadmissible.
Costs
40      Under Article 134 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
41      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      eSlovensko Bratislava is ordered to pay the costs.
Luxembourg, 15 February 2022.
E. Coulon
D. Spielmann
Registrar
President
*      Language of the case: English.
1      First occurrence.