JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
10 June 2020 (*)
(Financial assistance in the field of Connecting Europe Facility (CEF) — Transport sector for the period 2014-2020 — Calls for proposals — Decision establishing the list of proposals selected — Rejection of the proposal — Manifest errors of assessment — Equal treatment — Obligation to state reasons)
In Case T‑564/15 RENV,
Spliethoff’s Bevrachtingskantoor BV, established in Amsterdam (Netherlands), represented by Y. de Vries and J. de Kok, lawyers,
applicant,
v
European Commission, represented by S. Kalėda and J. Samnadda, acting as Agents,
defendant,
ACTION under Article 263 TFEU for the annulment of Commission Implementing Decision C(2015) 5274 final of 31 July 2015 establishing the list of proposals selected for receiving EU financial assistance in the field of Connecting Europe Facility (CEF) — Transport sector, following the calls for proposals launched on 11 September 2014 based on the Multi-Annual Work Programme,
THE GENERAL COURT (Sixth Chamber),
composed J. Schwarcz, acting as President, C. Iliopoulos (Rapporteur) and R. Norkus, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure and further to the hearing on 13 February 2020,
gives the following
Judgment
Legal background
The CEF Regulation
1        Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010 (OJ 2013 L 348, p. 129) (‘the CEF Regulation’), creates the Connecting Europe Facility (‘the CEF’), which aims to accelerate investment in the field of trans-European networks.
2        Recital 55 of the CEF Regulation states the following:
‘Given the resources available at Union level, concentration on projects with the highest European added value is necessary in order to achieve the desired impact. Support should therefore be focused on the core network and on projects of common interest in the field of traffic management systems, in particular …
Vessel Traffic Monitoring and Information Systems (VTMIS) …’
3        Article 3 of the CEF Regulation defines the CEF’s general objectives of enabling projects of common interest to be prepared and implemented within the framework of the trans-European networks policy in the transport, telecommunications and energy sectors. Article 4 of the CEF Regulation
sets out specific objectives for each of the three sectors.
4        Article 7 of the CEF Regulation, entitled ‘Eligibility and conditions for financial assistance’, states as follows:
‘1.      Only actions contributing to projects of common interest in accordance with Regulations (EU) No 1315/2013 [of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU (OJ 2013 L 348, p. 1)] and (EU) No 347/2013 [of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39)] …, as well as programme support actions, shall be eligible for support through Union financial assistance in the form of grants, procurement and financial instruments.
2.      In the transport sector, only actions contributing to projects of common interest in accordance with Regulation (EU) No 1315/2013 and programme support actions shall be eligible for support through Union financial assistance in the form of procurement and financial instruments under this Regulation. Only the following shall be eligible to receive Union financial assistance in the form of grants under this Regulation:
(a)      actions implementing the core network in accordance with Chapter III of Regulation (EU) No 1315/2013, including the deployment of new technologies and innovation in accordance with Article 33 of that Regulation, and projects and horizontal priorities identified in Part I of Annex I to this Regulation;
…’
5        Article 8 of the CEF Regulation, headed ‘Forms of grants and eligible costs’, provides:
‘1.      Grants under this Regulation may take any of the forms provided for by 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)].
The work programmes referred to in Article 17 of this Regulation shall establish the forms of grants that may be used to fund the actions concerned.’
6        Article 17 of the CEF Regulation, headed ‘Multiannual and/or annual work programmes’, provides:
‘1.      The Commission shall adopt, by means of implementing acts, multiannual and annual work programmes for each of the transport, telecommunications and energy sectors. …
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).
…
5.      The Commission, when adopting multiannual and sectoral annual work programmes, shall establish the selection and award criteria in line with the objectives and priorities laid down in Articles 3 and 4 of this Regulation and in Regulations (EU) No 1315/2013 and (EU) No 347/2013 … When setting the award criteria, the Commission shall take into account the general orientations laid down in Part V of Annex I to this Regulation.
…’
7        Article 18 of the CEF Regulation, headed ‘Granting of Union financial assistance’, is worded as follows:
‘1.      Following every call for proposals based on a multiannual or annual work programme as referred to in Article 17, the Commission, acting in accordance with the examination procedure referred to in Article 25, shall decide on the amount of financial assistance to be granted to the projects selected or to parts thereof. The Commission shall specify the conditions and methods for their implementation.
…’
8        Article 25 of the CEF Regulation, headed ‘Committee procedure’, states as follows:
‘1.      The Commission shall be assisted by the CEF Coordination Committee. The Committee shall be a committee within the meaning of Regulation (EU) No 182/2011 [of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13)].
…’
The Financial Regulation
9        Article 131 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), entitled ‘Applications for grants’, reads as follows:
‘…
2.      Grant applications shall be eligible if submitted by the following:
(a)      legal persons; or
(b)      natural persons, in so far as this is required by the nature or characteristics of the action or the objective pursued by the applicant …’
10      Article 132 of the Financial Regulation, headed ‘Selection and award criteria’, provides as follows:
‘1.      The selection criteria announced in advance in the call for proposals shall be such as to make it possible to assess the applicant's ability to complete the proposed action or work programme.
2.      The award criteria announced in advance in the call for proposals shall be such as to make it possible to assess the quality of the proposals submitted in the light of the objectives and priorities set.
…’
11      Article 133 of the Financial Regulation, headed ‘Evaluation procedure’, states:
‘1.      Proposals shall be evaluated, on the basis of pre-announced selection and award criteria, with a view to determining which proposals may be financed.
2.      The authorising officer responsible shall, on the basis of the evaluation provided for in paragraph 1, draw up the list of beneficiaries and the amounts approved.
3.      The authorising officer responsible shall inform applicants in writing of the decision on their application. If the grant requested is not awarded, the institution concerned shall give the reasons for the rejection of the application, with reference in particular to the selection and award criteria.
4.      The Commission shall be empowered to adopt delegated acts in accordance with Article 210 concerning detailed rules on the evaluation and award of grants and information to applicants.’
The 2014 multi-annual work programme
12      On 26 March 2014, the European Commission adopted the Multiannual Work Programme 2014 by Implementing Decision C(2014) 1921 final establishing a Multiannual Work Programme 2014 for financial assistance in the field of CEF — Transport sector (‘the decision on the multiannual work programme’).
The Annex to that decision sets out in detail the priorities and the maximum budget available for assignment to each of the priorities in respect of calls relating to the CEF — transport sector for 2014, including to the ‘Motorways of the Sea’ (‘the MoS’) project.
Background to the dispute
13      In order to select the projects justifying the award of funding under the CEF in the field of the trans-European transport infrastructure for the period 2014‑2020, a call for proposals by the Commission was published, on 11 September 2014, in the Official Journal of the European Union (OJ 2014 C 308, p. 5) (‘the call for proposals of 11 September 2014’ or ‘the call’).The call included funding objective 3 with a view to ‘optimising the integration and interconnection of transport modes and enhancing the interoperability of transport services, while ensuring the accessibility of transport infrastructures’.
14      In addition, the Innovation and Networks Executive Agency (INEA), established in 2014 by a Commission Implementing Decision 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), published on its website a document entitled ‘CEF Transport Call 2014 — Funding Objective 3’ (‘the call — funding objective 3’) explaining how the call for proposals of 11 September 2014 would be applied in each area,
including that of MoS.
15      Paragraph 12 of the call — funding objective 3 states the following under the heading ‘award criteria’:
‘Relevance — This refers to the contribution of the proposed Action to the TEN-T [Trans-European Transport Network] priorities as laid out in the TEN-T Guidelines, the funding priorities as laid down in the CEF Regulation and specific priorities and objectives described in the call for proposals [of 11 September 2014].
In particular, under relevance the … added value [for the European Union] of the proposed Action will be considered in light of the definition included in Article 3(d) of the TEN-T Guidelines.
In that respect, the highest …
added value [for the Union] is produced when remedying major missing cross-border projects and improving major bottlenecks and other cross-border sections …
Maturity — This refers to the state of preparation of the proposed Action, in particular the capacity for it to be implemented in accordance with the proposed time plan and the technical specifications …
Impact — This refers to the expected effect of the EU financial support in terms of its impact in improving weak financial viability in an otherwise economically desirable investment …
Quality — This refers to the soundness of the Action, in terms of the content of the planned activities, the appropriateness of the project management processes, the coherence between its objectives and planned resources/activities …
In the external assessment, each block of assessment criteria will be awarded a mark of between 0 and 5 points … The minimum acceptance threshold for an individual block of award criteria is 3 points. In other words, external experts will not recommend any proposal for funding which does not obtain at least 3 points for each block. However, subject to appropriate justification, the Commission may deviate from the advice given in the external evaluators’ recommendations.’
16      Annex 4 to the call — funding objective 3 states under the heading ‘Priority “Motorways of the Sea”’:
‘…
MoS works should be considered either as wider benefit implementation measures at regional or EU level, or as implementation measures for the purpose of upgrading an existing or setting up a new maritime link with a possibility of its further intermodal extension i.e. integration with other modes of transport on the TEN-T network. A MoS maritime link based action may also consist of links between ports and the core network or other national stretches of the core network.
The wider benefit actions may include, but are not limited to, a group of EU ports, infrastructure managers, shipowners or consortia bringing together different maritime entities.
The proposed Actions related to the upgrade or establishment of a maritime link must involve at least two EU ports (two core ports or one core and one comprehensive) and a maritime operator.
The involvement of the operator may be direct as a beneficiary or indirect as an associated entity participating in a project without receiving a grant.
The eligible costs of upgrading MoS links may involve costs borne by shipowners in order to comply with the provisions of the MARPOL Convention’s Annex VI [International Convention for the Prevention of Pollution from Ships, signed in London on 2 November 1973, as supplemented by the Protocol of 17 February 1978] and Sulphur Emission Control Area requirements entering into force on 1 January 2015, or costs contributing to better environmental performance of a maritime service, including installations related to on-shore power supply.
These kinds of actions must be submitted by shipowners operating on a particular maritime link together with the EU ports the link relates to.
Upgrades on vessels are limited to the additional efforts for environmental purposes and cannot cover the full costs of acquiring or constructing a vessel.
Projects purely involving the retrofitting of large fleets of vessels under one proposal and non-related to the specific maritime links upgrade are not eligible …’
17      The Commission produced an applicant guide (Annex B3) and a document on the questions most frequently asked with the answers (Annex B4) (‘the questions/answers’), which were also available on INEA’s website.
18      On 9 and 10 October 2014, the Commission organised, together with INEA, information days in Brussels (Belgium), which were open to all potential applicants, with the aim of presenting the policy priorities and content of each part of the call for proposals of 11 September 2014 and funding objective 3.
19      On 25 February 2015, the applicant, Spliethoff’s Bevrachtingskantoor BV, a company established in Amsterdam (Netherlands) which manages a fleet of polyvalent ships, equipped, with warehouses, flying the Netherlands flag, submitted a proposal for financial support in accordance with the call for proposals of 11 September 2014 (‘the proposal of 25 February 2015’).
The principal objective of the measures proposed by it was to upgrade
the links on short-haul maritime links on the corridors of the North Sea and the Baltic Sea by using emission-reduction technologies on multipurpose cargos and ConRo vessels, which are a combination of container and roll-on/roll-off vessels.
20      The original deadline for submission of project proposals was 26 February 2015 but was extended to 3 March 2015.
A total of 735 proposals were submitted and 680 proposals were deemed eligible, including that of the applicant.
21      On 10 July 2015, the Commission issued a press release (IP-15-5336) (‘the press release of 10 July 2015’) indicating that the CEF Committee had given a positive opinion on that institution’s proposal for the selection of projects and containing a link to that proposal, the so-called ‘brochure’. That brochure provided detailed information on the proposals that had been recommended for funding and those that had not been recommended, including that of the applicant (Annex A.5, p. 121).
22      On 17 July 2015, INEA sent an email to the applicant, signed by the INEA Evaluation Team (‘the email of 17 July 2015’), the substantive reasoning of which is identical to the reasoning in the press release of 10 July 2015.
That email reads as follows:
‘…
Following the calls for proposals published on 11 September 2014 under the [CEF] in the field of transport, the evaluation of the eligible proposals has taken place and the Commission has drawn up a list of proposals selected for receiving Union financial assistance.
On 10 July 2015, the CEF Coordination Committee gave a positive opinion on this draft list.
We regret to inform you that your application has not been successful in the above procedure, as explained below:
The Action’s relevance is poor, as it is not in line with the funding priorities and objectives of the Call because it proposes an upgrade of the fleet of vessels. Maturity of the Action is very good, with finalised engineering works, advanced procurement and using a proven technology. Impact of the Action is good as it helps avoid modal-shift and ensures quality of short sea shipping, but EU co-funding necessity is not demonstrated. Quality of the Action is fair, the objectives and planned activities are coherent and reasonable, but project organisation, control procedures and quality management require more detail.
…’
23      On 31 July 2015, the European Commission adopted Implementing Decision C(2015) 5274 final establishing the list of proposals selected for receiving EU financial assistance in the field of Connecting Europe Facility (CEF) — Transport sector, following the calls for proposals launched on 11 September 2014 based on the Multi-Annual Work Programme (‘the contested decision’).
That decision approves the list of projects of common interest in the field of CEF which were selected for receiving EU financial assistance, the estimated total eligible costs of the actions, the percentage of the financial assistance out of the estimated total eligible costs and the respective maximum amounts of the financial assistance.
24      The contested decision was not communicated to the applicant.
It was posted on the Commission’s website on 12 October 2015 and on INEA’s website on 14 October of that year.
Events subsequent to the bringing of the action
25      By application lodged at the Registry of the General Court on 11 April 2016 and registered under case number T‑149/16, the applicant brought
an action for annulment of the contested decision.
Proceedings before the General Court and the Court of Justice
26      By application lodged at the Registry of the General Court on 25 September 2015, the applicant requested that the email of 17 July 2015 be annulled and that the Commission be ordered to take a new decision with respect to its proposal of 25 February 2015 and to pay the costs.
In the event that the Court were to hold that the decision rejecting the proposal of 25 February 2015 is the contested decision, the applicant also requested that the Court consider the action for annulment to be directed against that decision.
27      By separate document lodged at the Registry of the General Court on 18 December 2015, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court by which it asked the Court to dismiss the action brought before it as inadmissible and order the applicant to pay the costs. The applicant submitted observations on the plea of inadmissibility on 21 March 2016 by which it asked the Court to dismiss the plea of inadmissibility and order the Commission to pay the costs.
28      By order of 11 October 2016, Spliethoff’s Bevrachtingskantoor v Commission (T‑564/15, not published, EU:T:2016:611) (‘the initial order’), the General Court dismissed the action as inadmissible and ordered the applicant to pay the costs.
29      By application lodged at the Registry of the Court of Justice on 8 December 2016, the applicant lodged an appeal against the initial order pursuant to Article 56 of the Statute of the Court of Justice of the European Union.
30      By judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510)
(‘the judgment on appeal’), the Court of Justice set aside the initial order, referred the case back to the General Court and reserved the costs. In the judgment on appeal, the Court of Justice held inter alia that the General Court had erred in law in declaring the action lodged by the applicant to be inadmissible on the ground that the act challenged was the email of 17 July 2015 and in rejecting the applicant’s request that its action be regarded as being directed against the contested decision
(see judgment on appeal, paragraph 73).
31      By document lodged at the Registry of the General Court on 29 June 2018, the applicant requested that the present case be joined with the case registered under reference T‑149/16,
Spliethoff’s Bevrachtingskantoor v Commission.
Procedure and forms of order sought after referral
32      Following the judgment on appeal and in accordance with Article 216(1) of the Rules of Procedure, the case was assigned to the Fourth Chamber by decision of the President of the General Court of 12 July 2018.
33      The written procedure before the General Court on the substance of the case was resumed at the stage which it had reached, in accordance with Article 217(2) of the Rules of Procedure.
34      By decision of 18 September 2018, the President of the Fourth Chamber of the General Court decided, at this stage in the proceedings, not to join the present case with the case registered under reference T‑149/16, Spliethoff’s Bevrachtingskantoor v Commission.
35      By document lodged at the Registry of the General Court on 18 September 2018, the Commission submitted its defence.
36      By document lodged at the Registry of the General Court on 16 November 2018, the applicant submitted the reply.
37      By document lodged at the Registry of the General Court on 4 January 2019, the Commission submitted the rejoinder.
38      Following a change in the composition of the Chambers of the Court with effect from 4 October 2019, the Judge-Rapporteur was assigned to the Sixth Chamber, and this case was therefore also assigned to it.
39      On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure.
40      The parties presented oral argument and their replies to the questions from the Court at the hearing on 13 February 2020.
41      In the reply, the applicant observed that the Court of Justice, by the judgment on appeal, had held that the subject matter of the action in the present case was the annulment of the contested decision.
The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to adopt, within three months of this judgment, a new decision on the proposal of 25 February 2015, taking account of that judgment;
–        order the Commission to pay the costs.
42      The Commission contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
The jurisdiction of the General Court
43      By its second head of claim, the applicant asks the Court to order the Commission to adopt, within three months of this judgment, a new decision on the proposal of 25 February 2015, taking account of that judgment.
44      In that regard, it should be noted that, according to established case-law, it is not for the Courts of the European Union, when exercising the jurisdiction to annul acts conferred on them by Article 263 TFEU, to issue directions to the EU institutions. The only possibility open to the Court under Article 264 TFEU is to annul the contested act.
It is for the institution concerned to adopt, under Article 266 TFEU, the measures necessary to comply with a possible judgment annulling a measure, exercising, subject to review by the European Union judicature, the discretion which it enjoys in that regard, complying with both the operative part and grounds of the judgment which it is required to comply with and the provisions of EU law (judgment of 30 September 2016, Trajektna luka Split v Commission, T‑70/15, EU:T:2016:592, paragraph 18 (not published); see also, to that effect, judgments of 24 January 1995, Ladbroke Racing v Commission, T‑74/92, EU:T:1995:10, paragraph 75, and of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 77).
45      Therefore, the second head of claim must be rejected as having been brought before a court that has no jurisdiction to hear it.
Substance
46      In the application, the applicant relies upon two pleas in law, alleging, first, manifest errors of assessment by the Commission with regard to its proposal of 25 February 2015 and, secondly, infringement of the principle of equal treatment. In the reply, the applicant puts forward a new plea in law alleging infringement of the obligation to state reasons, which will be dealt with as a third plea.
The first plea in law, alleging manifest errors of assessment
47      The applicant disputes, in particular, the Commission’s assessment of the criterion of the relevance of its proposal of 25 February 2015, as well as its assessment of the quality and impact criteria.
By contrast, it does not dispute the assessment of the criterion of the maturity of the proposed action in so far as that criterion was assessed as ‘very good’.
48      First, according to the applicant, the Commission committed a manifest error of assessment in considering that the relevance of the measures proposed in the call for proposals of 11 September 2014 was poor.
49      In the first place, the Commission’s assessment that the proposal of 25 February 2015 covers the upgrade of a fleet of vessels is incorrect in so far as, in reality, it proposes an upgrade of ‘two MoS links’, namely the North Sea corridors and the Baltic Sea corridors.
The applicant also claims that its proposal of 25 February 2015 covered ‘a particular link’, namely its liner service on the North Sea and Baltic Sea corridors.
The applicant submits, in addition, that the proposal of 25 February 2015 does not merely identify the link as the ‘North Sea and Baltic corridor’, but is related to specific maritime links.
With the help of a map and an overview of 13 EU ports served by its vessels, contained in the proposal of 25 February 2015, the applicant maintains that that proposal specified which vessels served which links.
50      The applicant notes that the call for proposals of 11 September 2014 did not require that the proposals identify the maritime links served by each of the vessels involved and that that is an additional reason raised by the Commission for the first time in the defence, which cannot therefore be taken into consideration.
51      In the second place, the applicant argues that, according to the call documents, an upgrade of its vessels should constitute a highly relevant proposal.
In that regard, the proposal of 25 February 2015 responds to the description of Annex 4 to the call — funding objective 3, in that the proposed updating of vessels would involve costs for compliance with the provisions of Annex VI to the International Convention for the Prevention of Pollution from Ships, signed in London on 2 November 1973, as supplemented by the Protocol of 17 February 1978 (‘Marpol
Convention
73/78’) and in that it contributes to a better environmental performance of the active maritime service on the relevant link without covering the full costs of acquiring or constructing a vessel.
52      Admittedly, according to the applicant, it is true that the proposal of 25 February 2015, which had been submitted jointly with the EU ports concerned by ‘the link’, did not concern any ancillary port investment.
However, the call did not state, in the observations on the award criteria, that proposals concerning the employment of emission abatement technologies on vessels as such did not meet the relevance criterion.
The applicant emphasises that, in so far as Annex 4 to the call — funding objective 3 stated that ‘projects purely involving the retrofitting of large fleets of vessels under one proposal and non-related to the specific maritime links upgrade are not eligible’, that statement does not apply to the applicant’s proposed action, given that it concerns projects which are not eligible.
The Commission acknowledged that its application was eligible.
Moreover, the Commission’s submission that the call requires ‘port interventions’ is incorrect in so far as, on the one hand, the call — funding objective 3 merely states that the proposed actions ‘must involve at least two ports’ and, on the other hand, the call does not require that the eligible costs should include both costs borne by shipowners and maritime service related costs, such as port services.
The questions/answers could not add requirements that were not initially provided for in the call for proposals of 11 September 2014 and the disclaimer mentioned on the Commission’s website explicitly confirms that they ‘do not in themselves have legal value’. In the reply, the applicant argues that, in so far as Annex 4 to the call — funding objective 3 states that proposals ‘must be submitted by shipowners operating on a particular maritime link together with the EU ports the link relates to’, the proposal of 25 February 2015 complies with this requirement and the Commission, until the submission of the defence, did not make any comments or objections in that regard.
53      In the third place, according to the applicant, the Commission, in the defence, put forward other reasons in addition to those contained in the contested decision to explain why the action could be deemed to be of poor relevance. According to case-law, these additional reasons cannot be taken into consideration.
In that regard, the Commission submitted that the number of vessels concerned was considered to constitute a ‘large fleet’, which is excluded from funding on the basis that no argument was put forward as to how these vessels relate to a specific maritime link. The Commission furthermore argued that the proposal of 25 February 2015 actually relates to the upgrade of vessels rather than the environmental performance of maritime services, and it claimed that that proposal did not match the proposals that were selected.
54      According to the applicant, even though it is wrong to regard a fleet of 25 vessels as a large fleet, its proposal of 25 February 2015 should, according to the call, have been classed as ‘non-eligible’, which the Commission did not do. Nowhere else in the call is it specified that ‘large fleets’ are less relevant than smaller fleets.
That requirement is only relevant in the context of eligibility.
With regard to environmental performance, it follows from basic logic that the environmental upgrade of a vessel is beneficial for the environmental performance of maritime services for which that vessel is used.
55      Secondly, with regard to the ‘impact’ award criterion, the applicant maintains, in essence, that the Commission’s assessment that ‘EU co-funding necessity is not demonstrated’ is unwarranted in so far as the proposal of 25 February 2015 provides a reasoned demonstration that EU co-funding is necessary to overcome the barrier of the entry costs of scrubbers and was, to this end, accompanied by an investment return sensitivity analysis (cost effectiveness analysis, Annex C.3).
56      Thirdly, with regard to the criterion of the ‘quality’ of the proposed action, the applicant argues that, contrary to the Commission’s assessment that ‘project organisation, control procedures and quality management require more detail’, the proposal of 25 February 2015 provided a detailed overview of the main risk factors and what measures would be taken to address them.
Apart from these factors, the applicant anticipated no other obstacles that require specific control procedures and quality management, so that the organisational structure described in the proposal of 25 February 2015, including the control procedures and quality management, should be sufficient.
57      In so far as the Commission, in addition to reiterating the findings set out in the email of 17 July 2015, which, furthermore, do not make it clear what details were required, stated at the defence stage an additional reason why it was entitled to regard the proposal of 25 February 2015 as being of ‘fair’ quality, namely that ‘the proposal did not provide operational and technical details on the scrubbers, and scrubber waste handling during discharge operation in ports’, that new argument cannot be taken into consideration and is, moreover, manifestly incorrect.
That reason is inconsistent with the email of 17 July 2015, in which the Commission concluded that the maturity of the action is ‘very good, with finalised engineering works, advanced procurement and using a proven technology’.
In any event, that new argument relates to the maturity award criterion rather than to the quality criterion.
58      The Commission challenges the arguments put forward by the applicant.
59      It should be noted at the outset, in relation to the obligation to state reasons, that the latter is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67; of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraph 52; and of 4 July 2006, Hoek Loos v Commission, T‑304/02, EU:T:2006:184, paragraph 54).
60      In those circumstances, the arguments alleging infringement of the obligation to state reasons in the context of the plea alleging manifest errors of assessment must be rejected as ineffective.
61      As regards the applicant’s claims relating to alleged manifest errors of assessment vitiating the contested decision, first of all, it should be noted that the proposals submitted for the CEF, transport sector, were evaluated by the Commission in the light of criteria set out in the decision on the multiannual work programme, in the call for proposals of 11 September 2014 and in the call — funding objective 3. In that regard, funding objective 3 provides for four ‘individual blocks’ of award criteria under which the proposals are to be evaluated:
relevance, maturity, impact and quality.
All those criteria are equally weighted and are awarded a score of between 0 and 5 points.
The minimum acceptance threshold for each individual block is 3 points and a proposal which does not obtain at least 3 points for each block shall not be selected, subject to appropriate justification which is accepted by the Commission.
62      Consequently, each of the reasons put forward to justify the award of a score of between 0 and 2 points is in itself sufficient to justify the decision not to adopt the proposal of 25 February 2015 with a view to funding under the CEF (see, to that effect, judgment of 14 February 2008, Provincia di Imperia v Commission, T‑351/05, EU:T:2008:40, paragraph 37). Accordingly, that decision must be annulled, in principle, only if all of those grounds are unlawful.
In those circumstances, an error or other illegality which affects only one of those pillars of reasoning cannot suffice to justify the annulment of the contested decision as that error or illegality could not have had a decisive influence as regards the refusal of funding under the CEF.
63      Next, as regards the application of the award criteria, as set out in paragraph 15 above, it should be noted that, in the area of the grant of financial assistance, the Commission enjoys a wide discretion as regards the existence of the conditions justifying the grant of such assistance (judgments of 19 May 1994, Consorzio gruppo di azione locale ‘Murgia Messapica’ v Commission, T‑465/93, EU:T:1994:56, paragraph 46, and of 1 March 2018, Poland v Commission, T‑402/15, EU:T:2018:107, paragraph 35 (not published); see also, to that effect, judgment of 7 May 1992, Pesquerias De Bermeo and Naviera Laida v Commission, C‑258/90 and C‑259/90, EU:C:1992:199, paragraph 25).
64      Lastly, it should be borne in mind that, pursuant to Article 5(2)(e) of Commission Decision C(2013) 9235 final of 23 December 2013 delegating powers to INEA with a view to the performance of tasks linked
to the implementation of Union
programmes in the field of transport, energy and telecommunications infrastructure and research and innovation in the field of transport and energy, and including, in particular, implementation of the appropriations entered in the general budget of the Union, and to Annex I(B)(a), seventh indent, to that decision, INEA does not itself have the power to adopt grant decisions under the CEF, but is entrusted with notifying Commission decisions.
In the course of carrying out that task, INEA sent the email of 17 July 2015 to the applicant, the substantive reasons for which are identical to the statement of reasons in the press release of 10 July 2015.
The question whether the contested decision is well founded will therefore be analysed on the basis of the reasoning contained in the email of 17 July 2015.
65      It is in that context that the General Court is required, in the present case, to determine whether the reasons for rejecting the applicant’s project set out in the email of 17 July 2015 underlying the contested decision are, as the applicant claims, vitiated by manifest errors of assessment.
66      As regards the assessment of the relevance criterion, it should be borne in mind that, in the email of 17 July 2015, the relevance of the proposed action was found to be poor given that ‘it [was] not in line with the funding priorities and objectives of the call because it propose[d] an upgrade of the fleet of vessels’.
67      First, the applicant claims that that assessment is incorrect in so far as, in reality, it proposed an
upgrade of ‘two MoS links’, that is to say, the North Sea corridors and the Baltic Sea corridors.
68      In that regard, it should be noted that the applicant, in emphasising the contrast between, on the one hand, the upgrade of a fleet of vessels and, on the other hand, the upgrade of MoS links, refers to Annex 4 to the call — funding objective 3, according to which ‘projects purely involving the retrofitting of large fleets of vessels under one proposal and non-related to the specific maritime links upgrade are not eligible’ (paragraphs 17 and 19 of the application).
69      In the first place, contrary to the applicant’s submission, its proposal of 25 February 2015 did not reveal the upgrade of one or more dedicated maritime links, but only the upgrade or retrofitting of its vessels.
The applicant’s assertions that that proposal included, first, an upgrade of ‘two MoS links’, namely the North Sea corridors and the Baltic Sea corridors, and, secondly, the upgrade of a ‘particular link’, namely its liner service on the North Sea and Baltic Sea corridors, are contradictory.
70      That contradiction is based on the incorrect premiss that the North Sea and the Baltic Sea corridors or the combination of the two can be regarded as one or two dedicated links. It must be stated that each sea referred to may potentially accommodate several specific maritime links between different ports situated in the region concerned.
71      The applicant itself appears to recognise that contradiction in so far as it submits, with reference to a geographical map and tables giving an overview of 13 EU ports contained in its proposal of 25 February 2015, that that proposal did not merely identify ‘the’ link as the ‘North Sea and Baltic corridor’, but that it related to an unspecified number of specific maritime links between 13 EU ports served by its vessels.
72      In that regard, it should be noted that neither the map nor the overview of the 13 ports referred to in paragraph 71 above shows an unspecified number of dedicated maritime links each of which would be established between two specific ports. Those documents show, rather, 13 ports which do not correspond. The map does not mention the ports mentioned in the tables, namely Vlissingen (Netherlands) and Naantali-Turku (Finland).
Conversely, the tables do not include the ports mentioned on the map, namely Saint Petersburg (Russia) and Hanko (Finland).
It must be held that the information contained in those documents does not disclose how many port links are to be served by the applicant’s vessels.
73      In the second place, in so far as the applicant claims that the call for proposals of 11 September 2014 does not require that the proposals identify the maritime links served by each of the vessels concerned and that it is therefore an additional ground relied on by the Commission for the first time at the stage of the defence, which cannot therefore be taken into consideration, it should be noted that it is apparent on several occasions from the actual text of the call for proposals of 11 September 2014 and, in particular, from Annex 4 to the call — funding objective 3 cited in paragraph 16 above, that the proposals must relate to the upgrade of specific maritime links (Annex B 2, p. 28).
74      In that regard, Annex 4 to the call — funding objective 3 states the following:
‘MoS works should be considered either as wider benefit implementation measures at regional or EU level, or as implementation measures for the purpose of upgrading an existing or setting up a new maritime link …
These kinds of actions must be submitted by shipowners operating on a particular maritime link together with the EU ports the link relates to. …
Projects purely involving the retrofitting of large fleets of vessels under one proposal and non-related to the specific maritime links upgrade are not eligible.’
75      Consequently, contrary to what the applicant claims, the call for proposals of 11 September 2014 requires the candidate to identify and clearly describe the dedicated links which are served by its vessels.
By pointing out that that requirement is contained in the call itself and by basing its arguments on all the sources of information and assistance, namely the decision on the multiannual work programme, the call for proposals of 11 September 2014 and the call — funding objective 3, which the applicant, like all the other candidates, already had available to it before the adoption of the contested decision and by means of which it could have submitted a proposal which met the requirements set out in the call, the Commission did not rely on a reason additional to those contained in the contested decision in so far as it merely clarified, in response to an argument put forward by the applicant, the criteria already set out in Annex 4 to the call — funding objective 3.
76      Secondly, in so far as the applicant maintains that the proposal of 25 February 2015 must be regarded as a very relevant proposal given that it responds to the description of Annex 4 to the call — financing objective 3 in that the proposed upgrade of vessels involved costs in order to comply with the provisions of Annex VI to the Marpol Convention 73/78 and in so far as it contributed to a better environmental performance of the active maritime service on the relevant link, it should be noted, first, that the reasoning contained in the email of 17 July 2015, as cited in paragraph 66 above, does not call into question the environmental contribution per se of that proposal, but its restriction to the upgrade of a fleet of vessels.
77      It must be observed that, in the light of the information in the call for proposals of 11 September 2014 and its context, the existence of a link between the shipowner and the port from which that shipowner carries on its
activity is required.
In that regard, Annex 4 to the call — funding objective 3 states the following:
‘…
The proposed Actions related to the upgrade or establishment of a maritime link must involve at least two EU ports (two core ports or one core and one comprehensive) and a maritime operator …
The eligible costs of upgrading MoS links may involve costs borne by shipowners in order to comply with the provisions of [Annex VI to the] Marpol Convention [73/78] or costs contributing to better environmental performance of a maritime service, including installations related to on-shore power supply.
These kinds of actions must be submitted by shipowners operating on a particular maritime link together with the EU ports the link relates to. …
Projects purely involving the retrofitting of large fleets of vessels under one proposal and non-related to the specific maritime links upgrade are not eligible.’
78      Furthermore, the questions/answers (see, for example, questions 6 and 14 and, especially, questions 19 and 22) specify those requirements by emphasising that the upgrade of vessels may receive financial assistance only provided that that investment is part of a larger investment and that the ports also make investments which contribute to the increased efficiency of the maritime link.
In that regard, it must be observed that this is not a new requirement, but rather clarification of the requirement already contained in Annex 4 to the call — funding objective 3 cited in paragraph 77 above.
Therefore, even though the questions/answers as such have no legal value and are not capable of adding requirements which were not initially provided for in the call for proposals of 11 September 2014, they nevertheless form part of the framework which allows those requirements to be interpreted.
79      In the light of the content of the call for proposals of 11 September 2014 and its context, it is necessary, in the second place, to reject the applicant’s arguments that its proposal of 25 February 2015 was consistent with the requirement that the proposals be made in association with the EU ports affected by the route in so far as that proposal referred to six ports situated in five Member States, namely Antwerp (Belgium), Lübeck (Germany), Rauma (Finland), Gröningen (Germany), Hamina-Kotka (Finland) and Clydeport (United Kingdom). As the Commission rightly points out, it is apparent from the requirements as they appear in the description of the call for proposals of 11 September 2014 and in the related documents described in paragraphs 77 and 78 above that, first, the proposal must demonstrate, in essence, the participation of at least two ports as part of a larger investment and that, secondly, the retrofitting of the vessels in itself and the simple incorporation of the names of those ports in the proposal, without defining their tasks and roles in the project, are not sufficient to satisfy the relevance criterion. In that regard, it should also be noted that, contrary to what the applicant claims, it is clear from those documents relating to the call for proposals of 11 September 2014 that ‘the retrofitting of large fleets of vessels under one proposal’ is not sufficient and must, consequently, be part of a larger investment which also involves the ports concerned.
The applicant itself admitted that its proposal of 25 February 2015 did not cover any port investments.
80      Moreover, it is apparent from the call for proposals of 11 September 2014 and its context that the requirement of a port investment is not, contrary to what the applicant claims, limited to the eligibility criterion.
In that regard, it must be noted that the applicant confined itself to interpreting a single sentence of Annex 4 to the call — funding objective 3. The context of the call for proposals of 11 September 2014, as described in paragraph 77 above, shows, first, that the conditions mentioned in Annex 4 to the call — funding objective 3 describe the general objectives of the CEF in the context of funding objective 3 in general and, secondly, that, to a large extent, they overlap.
In particular, the question whether the proposed action offers added value for the Union and contributes to the priorities of the trans-European transport network (TEN-T) falls within both the eligibility criterion (call — funding objective 3, p. 10) and the award criterion relating to relevance (call — funding objective 3, p. 12). Consequently, there is no exclusive relationship between those two criteria and, as the Commission rightly points out, it cannot be ruled out that a candidate may pass the initial examination of the eligibility criteria and that, subsequently, after a more thorough review in the assessment of the merits, he will have his proposal rejected because it does not meet the award criteria.
81      Thirdly, as regards the argument that the Commission put forward in the defence reasons other than those set out in the contested decision seeking to establish the reasons why the measures proposed by the applicant had been found to be of poor relevance, that argument must be rejected as ineffective in the present case, since those grounds are not among the grounds on which the contested decision is based, which are the only grounds examined in the present case.
82      In the light of the foregoing, it must be concluded that the Commission’s assessment of the relevance criterion is not vitiated by a manifest error.
83      It follows that the first part of the first plea in law must be rejected as unfounded. In addition, for the reasons set out in paragraph 62 above, the first plea in law must be rejected in its entirety.
The second plea in law, alleging an infringement of the principle of equal treatment
84      The applicant claims that, by adopting the contested decision, the Commission infringed the principle of equal treatment. It did not select the applicant’s proposed action for funding, while it selected other, similar proposals which also concerned fleets of vessels and related to emission abatement technologies.
The applicant’s proposal is no less related to specific maritime links than the other proposals involving the upgrade of vessels with scrubber technologies, the only difference between those other proposals and the applicant’s being that, in addition to that upgrade, those other proposals also relate to upgrades of ports.
Besides the fact that the requirement to carry out investments or activities in ports constitutes an additional reason which was not disclosed to the applicant before the Commission filed its defence, the proposed upgrade activities in ports in several of those proposals concern general maintenance or construction works, which have no relationship with the upgrade of the vessels or the environmental performance of an MoS link.
In particular, the proposals of one of its competitors, A, include various investments relating to terminal operation improvements, such as the replacement of magnetic cards, which are not related to the installation of scrubbers on its vessels serving various MoS links. These differences cannot justify the fact that the applicant’s proposal was not selected for funding, while those other proposals were selected.
In so far as the proposals thus selected are proposals of competitors of the applicant, that would result in a serious distortion of competition on those maritime links.
85      The applicant adds that the press release of 10 July 2015 does not state that the proposal of one of its competitors, B, involved any dock-work investment.
The Commission’s claim, in the defence, that that proposal included investments for increasing port efficiency and scrubber waste handling arrangements does not follow from any of the documents published or otherwise provided by that institution.
The Commission’s assessment in that press release that the measures would upgrade two maritime links could not, according to the applicant, objectively justify unequal treatment in so far as the maritime links served by the applicant and B are very similar, as is illustrated by the map of MoS links in B’s proposal, which is remarkably similar to that provided by the applicant.
86      The Commission disputes the applicant’s arguments.
87      First of all, it should be noted that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified
(see judgment of 26 October 2006, Koninklijke Coöperatie Cosun, C‑248/04, EU:C:2006:666, paragraph 72 and the case-law cited; judgment of 17 July 2014, Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, T‑457/09, EU:T:2014:683, paragraph 364).
88      However, it must be held that the applicant has not shown that its proposal of 25 February 2015 was comparable to the proposals of its competitors which were accepted, in particular those of A and B.
89      First, it should be noted that the applicant itself admits that, unlike its competitors’ other proposals, its proposal of 25 February 2015 did not concern port upgrades.
90      Therefore, it must be held that, in contrast to the proposals submitted by its competitors, the proposal of 25 February 2015 did not fulfil the conditions of the call for proposals of 11 September 2014 (see paragraph 89 above).
91      Secondly, as regards the applicant’s argument that the upgrade activities described in the proposal of its competitor A were not related to the upgrade of vessels or to the environmental performance of an MoS link, it should be borne in mind that, according to Annex 4 to the call — funding objective 3, it is required that ‘the proposed actions related to the upgrade or establishment of a maritime link, … involve at least two EU ports’ and that the questions/answers
document (Annex B4) (see, for example, questions 6 and 14 and, in particular, questions 19 and 22) specify those requirements by emphasising that ports should also make investments that contribute to the efficiency
of the maritime link.
92      In the light of those requirements, the Commission cannot be criticised for having exceeded its discretion by taking the view that the measures proposed by A, which provide, inter alia, for the construction of a boarding facility at Helsinki-Vuosaari (Finland) to improve the treatment of the activities of ferries and arrangements for the operation of terminals at Lübeck-Travemünde (Germany) by means of replacing magnetic cards and upgrading terminals and by automatisation of the train terminals (Annex A5 to the application, p. 107), constitute investments for increasing the efficiency of port operations and therefore contribute to the efficiency of the maritime link.
93      Thirdly, as regards the description of the proposal submitted by B, it should be noted that the applicant does not claim, in the application, that that proposal is equivalent to its own, since its competitor’s proposal would not have any more than the applicant’s offer involved port investment.
It must be noted, however, that the applicant puts forward that argument for the first time at the stage of the reply.
94      In the case of a submission put forward for the first time at the reply stage, it must be noted that it follows from Article 76(d) in conjunction with Article 84(1) of the Rules of Procedure that the application initiating the proceedings must state the subject matter of the proceedings and contain a summary of the pleas in law relied on, and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
However, a plea which constitutes an amplification of a plea previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible. The same applies to a submission made in support of a plea in law (judgment of
30 December 2017, Red Bull v EUIPO — Optimum Mark (Combination of the colours blue and silver), T‑101/15 and
T‑102/15, EU:T:2017:852, paragraph 107).
95      In the present case, the complaint relating to the lack of port investments provided for in the proposal submitted by B is not apparent directly or indirectly from the claims made by the applicant in its application. On the contrary, in the context of the latter, the applicant claims that the only difference between its proposal of 25 February 2015 and the proposals of its competitors lies in the fact that those proposals also relate to the upgrade of ports, but, unlike its proposal, do not have any connection with the upgrade of vessels or the environmental performance of an MoS link.
96      The complaint alleging the absence of port investment provided for in the proposal submitted by B must therefore be rejected as inadmissible.
97      In any event, it should be noted that, in the context of the plea alleging an infringement of the principle of equal treatment as a general principle of EU law, the burden of proving that the situations in which the applicant finds itself are comparable with its competitors rests on the applicant (see, to that effect, judgment of 8 April 2014, ABN Amro Group v Commission, T‑319/11, EU:T:2014:186, paragraph 114).
The Commission stated in its defence that B’s proposal related to the ports of Lübeck and Helsinki, which were involved in the action by means of investments to increase port efficiency and provisions for scrubber waste handling.
In those circumstances, the applicant does not discharge its burden of proof by merely claiming that the Commission’s argument in the defence is not supported by any document published or provided by that institution.
Similarly, the fact that the map contained in the summary of B’s proposal, which appears in the press release of 10 July 2015, does not reveal either of the two links mentioned in the press release between the two countries concerned is not sufficient to demonstrate that B’s proposal is comparable with that of the applicant of 25 February 2015.
98      Therefore, it follows that the second plea in law, alleging infringement of the principle of equal treatment, must be rejected.
The third plea in law, alleging an infringement of the duty to state reasons
99      First of all, the applicant maintains that the contested decision or the email of 17 July 2015 and the press release of 10 July 2015 did not provide it with sufficient information to enable it to determine whether the contested decision is well founded or whether it is vitiated by an error which may make it possible for its validity to be contested.
In particular, the contested decision does not provide adequate reasoning, does not even mention the applicant and was not notified to it, which, according to the judgment on appeal (paragraph 68), was contrary to the requirements flowing from the general principle of sound administration.
The only reasons given to the applicant were provided in the press release of 10 July 2015 and the email of 17 July 2015.
100    Next, the applicant claims that the Commission, in the defence, ‘attempts to remedy the inadequate and manifestly incorrect reasoning [for the contested decision] by providing various additional reasons’ (in other words, reasons which were not provided in the email of 17 July 2015 or the press release of 10 July 2015) which were never previously disclosed to it. Those additional reasons cannot, according to the case-law, be taken into consideration and illustrate that the reasoning, at the time of the adoption of the contested decision, was unclear and inadequate.  Moreover, according to the applicant, even if the Commission’s additional reasons were to be taken into consideration, those reasons are inconsistent with those given in the press release of 10 July 2015 and the email of 17 July 2015, which do not allow a proper understanding of the reasons underlying the contested decision.
101    Finally, the applicant claims that the contested decision and other communications from the Commission and INEA sent to it do not provide any information on the respective weighting and calculation of the various award criteria. The Commission did not provide any information about the score provided to the four general award criteria of the applicant’s proposal, with the result that, for example, it was not easy to determine whether the classification ‘fair’ met the minimum acceptance threshold of three out of five points.
Even though the Commission decided to adopt a points-based system, it did not communicate the scores to the applicant.
102    The Commission disputes the applicant’s arguments.
103    It should, at the outset, be noted that it is settled case-law that an absence of or an inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and constitutes a plea involving a matter of public policy which may, and even must, be raised by the EU Courts of their own motion (see judgment of
20 July 2017, Badica and Kardiam v Council, T‑619/15, EU:T:2017:532, paragraph 42 and the case-law cited).
104    In those circumstances, the Court has jurisdiction to hear the applicants’ plea alleging infringement of the obligation to state reasons, without it being necessary to examine whether, in accordance with Article 84(1) of the Rules of Procedure, that plea is based on ‘matters of law or of fact which came to light in the course of the procedure’.
105    The statement of reasons required by Article 296 TFEU 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 person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (judgment of
29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147;
see also, to that effect, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited).
106    Therefore, in individual decisions, it is apparent from settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 148 and the case-law cited).
107    The statement of reasons must therefore, in principle, be notified to the person concerned at the same time as the decision adversely affecting him.
A failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the EU Courts (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 149 and the case-law cited).
108    The statement of reasons required by Article 296 TFEU must be appropriate to the measures at issue and the context in which it was adopted. It is settled case-law that the requirement to state reasons must be assessed by reference to the circumstances of the 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, inasmuch as the question of whether the statement of reasons for a measure 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 (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150; see, also, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 53 and the case-law cited).
109    In particular,
the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 54, and of 9 December 2014, BelTechExport v Council, T‑438/11, not published, EU:T:2014:1044, paragraph 84).
110    It must also be pointed out that the
conciseness of the statement of reasons for a decision by which the Commission refuses a
proposal for financial support
is an unavoidable consequence of the processing by computer of several hundred
proposals for financial support, upon which the Commission must adjudicate within a short period (see, to that effect, judgment of 14 February 2008, Provincia di Imperia v Commission, T‑351/05, EU:T:2008:40, paragraph 54 and the case-law cited).
111    In the present case, it is common ground that the Commission, in the context of the call for proposals of 11 September 2014, dealt with 735 proposals, 680 of which were deemed eligible. In those circumstances, a more detailed statement of reasons in support of each individual decision would be likely to compromise the rational and efficient allocation of the financial assistance
in the field of CEF (see, to that effect, judgment of 14 February 2008, Provincia di Imperia v Commission, T‑351/05, EU:T:2008:40, paragraph 54 and the case-law cited).
112    In addition, the statement of reasons for the contested decision must be assessed in the light of the criteria set out in the email of 17 July 2015, in the decision on the multiannual work programme, in the call for proposals of 11 September 2014 and in the call — funding objective 3.
113    It follows that the information in the contested decision, as supplemented by the information contained, in particular, in the email of 17 July 2015 and in the call — funding objective 3, is such as to enable the applicant, even without its being expressly mentioned in the contested decision, to understand that the relevance of its proposal of 25 February 2015 was found to be poor given that it proposes an upgrade of the fleet of vessels without clearly identifying the dedicated links which are served by its vessels and without identifying the involvement of the ports concerned by the maritime links as part of a larger investment.
114    It should also be noted that the applicant was in a position effectively to challenge the merits of the rejection of its proposal of 25 February 2015 by the contested decision, which is demonstrated by its arguments in support of the first plea, alleging manifest errors of assessment, in which it calls into question the merits of the reasons relied on by the Commission against it, including the explanations in the email of 17 July 2015 and the information contained in the call — funding objective 3.
115    In that regard, as regards the applicant’s argument that, prior to the submission of the defence, the Commission did not submit any comments or objections relating to the identification of the maritime links or to the carrying out of the port activities, nor did it specify such an indication in its email of 17 July 2015, that argument of the applicant is contradictory.
116    First, it must be observed that it is apparent from the case file that the applicant actually understood the email of 17 July 2015 as meaning that it was accused of not having identified the maritime links in its proposal of 25 February 2015.
Already at the stage of the application, the applicant developed its arguments in that regard by claiming that the assessment in the email of 17 July 2015 was incorrect in so far as it had proposed an upgrade of ‘two MoS links’, namely the North Sea corridors and the Baltic Sea corridors.
117    Secondly, as regards the requirement to carry out port activities, it should also be noted that the applicant actually understood the email of 17 July 2015 as requiring it to identify, in its proposal of 25 February 2015, the involvement of the ports affected by the maritime links.
It must be stated that, already at the stage of the application, the applicant developed its arguments in that regard by claiming, by reference to the relevant passages of Annex 4 to the call — funding objective 3, that the call did not state, in the comments on the relevance
award criterion, that the proposals relating to the use of emissions reduction technologies on vessels as such, that is to say, without additional work or studies, did not satisfy that criterion.
118    The applicant’s claim that they were two additional grounds relied on for the first time in the Commission’s defence is therefore at odds with its own arguments set out in the application.
119    It follows that the applicant cannot maintain that it was not in a position to understand the reasons which led the Commission to reject its proposal of 25 February 2015 in the contested decision.
120    That conclusion cannot be invalidated by the applicant’s argument that the Commission is attempting ‘to remedy the inadequacy and manifestly erroneous nature [of the statement of reasons for the contested decision] by relying on several additional elements in the statement of reasons’, which has no bearing on the adequacy of the statement of reasons for the contested decision at the time of its adoption.
121    In so far as the applicant submits, for the first time in the reply, that it had not received any information concerning the respective weighting of the various award criteria and the score given to the four general award criteria, first, it must be pointed out that, contrary to what is claimed by the applicant and as indicated in paragraphs 15, 61 and 62 above, the weighting of the various criteria was explained in Annex 4 to the call — funding objective 3, according to which the award criteria are equal and the minimum acceptance threshold for an individual block of award criteria is (uniformly) 3 points.
122    Secondly, as regards the communication of the scores awarded for the four general award criteria, the applicant rightly maintains that it was not clear that classification of the quality criterion as ‘fair’ reached the minimum threshold for accepting three out of five points.
Nevertheless, as regards that criterion, that line of argument is, for the reasons set out in paragraphs 62 and 83 above, ineffective.
123    By contrast, as regards the relevance criterion, the applicant has not claimed that it was not clear that the classification of that criterion as ‘poor’ reached the minimum threshold for acceptance of three out of five points.
Irrespective of the fact that it follows from the semantic meaning of the word ‘poor’ that the minimum acceptance threshold for that criterion was not reached, such an argument should, in any event, also be rejected as ineffective since, as stated in paragraph 114 above, the applicant was in a position effectively to challenge the merits of the rejection of its proposal of 25 February 2015 by the contested decision by refuting, in particular, the Commission’s assessment of the relevance of that proposal as being ‘poor’.
124    Consequently, the third plea in law, alleging a failure to state reasons, must be rejected.
125    Thirdly, in the context of the plea alleging an infringement of the obligation to state reasons, the applicant criticises the fact that, in addition to the failure to mention its name in the contested decision, that decision was not notified to it, which, according to the judgment on appeal (paragraph 68), was contrary to the requirements deriving from the general principle of sound administration.
Without it being necessary to rule on the admissibility of that complaint, it should be noted that, in the present case, it is not capable of justifying the annulment of the contested decision. The lack of individual notification of a contested measure,
although it has an effect on when the time for bringing proceedings started to run, does not, on its own, justify annulment of the measure in question (see, to that effect, judgment of 26 November 2015, HK Intertrade v Council, T‑159/13 and T‑372/14, not published, EU:T:2015:894, paragraphs 90 and 91). In that regard, the applicant does not put forward any arguments to show that, in the present case, the failure to notify the contested decision resulted in an infringement of its rights which would justify the annulment of that decision (see, to that effect, judgment of 26 November 2015, HK Intertrade v Council, T‑159/13 and T‑372/14, not published, EU:T:2015:894, paragraphs 90
and the case-law cited).
As stated in paragraph 114 above, the applicant was in a position effectively to challenge the merits of the rejection of its proposal of 25 February 2015 by the contested decision and was able to bring before the General Court, within the prescribed period, an action for annulment of the contested decision.
126    It follows from all of the foregoing that the action must be dismissed.
Costs
127    In the appeal judgment, the Court of Justice reserved the costs. It is therefore for the General Court to decide in this judgment on the costs relating to the proceedings brought before the General Court and to the appeal proceedings before the Court of Justice, in accordance with Article 219 of the Rules of Procedure.
128    Under Article 134(1) 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.
129    Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
130    Since the Commission has been unsuccessful in the appeal proceedings before the Court of Justice, it must be ordered to bear its own costs and to pay those incurred by the appellant in connection with those proceedings and the proceedings before the General Court prior to the appeal.
131    Since the applicant has been unsuccessful on the merits in the proceedings referred back to the General Court, it must be ordered to pay the costs relating to those proceedings.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders the European Commission to pay its own costs as well as those incurred by Spliethoff’s Bevrachtingskantoor BV relating to the appeal proceedings before the Court of Justice, in Case C‑635/16 P, and relating to the initial proceedings before the General Court, in Case T‑564/15;
3.      Orders Spliethoff’s Bevrachtingskantoor to pay the costs relating to the proceedings referred back to the General Court, in Case T‑564/15 RENV.
Schwarcz
Iliopoulos
Norkus
Delivered in open court in Luxembourg on
10 June 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.