ORDER OF THE PRESIDENT OF THE GENERAL COURT
11 September 2020 (*)
(Interim measures – Grant agreements concluded in the context of the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) – Reimbursement of sums paid – Application for interim measures – No urgency)
In Case T‑381/20 R,
Datax sp. z o.o., established in Wroclaw (Poland), represented by J. Bober, lawyer,
applicant,
v
Research Executive Agency (REA), represented by S. Payan-Lagrou and V. Canetti, acting as Agents, and by M. Le Berre, lawyer,
defendant,
APPLICATION under Articles 278 and 279 TFEU for suspension of REA measure Ares(2019) 7018535 of 13 November 2019 concerning project 261659 (HELP) and project 286822 (GreenNets), concerning rejection and recovery of eligible costs and debit notes issued on the basis of that measure,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Facts, procedure and forms of order sought
1        On 24 December 2010, the Research Executive Agency (REA) signed with the coordinator of a consortium, the Universitat Politècnica de Catalunya (Polytechnic University of Catalonia, Spain), the grant agreement for project 261659 (HELP) under the Seventh Framework Programme for Research, Technological Development and Demonstration Activities (2007-2013).
2        On the same date, the coordinator of the consortium signed the grant agreement concerning that project with the applicant, Datax sp. z o.o., a member of the consortium.
3        That project lasted 15 months, from 1 February 2011 to 30 April 2012.
4        On 5 August 2011, the applicant, as coordinator of a consortium, signed the grant agreement for project 286822 (GreenNets).
5        That project lasted 24 months from 1 September 2011 to 31 August 2013.
6        In March 2013, the European Anti-Fraud Office (OLAF) opened an investigation into allegations of fraud in connection with several projects under the Seventh Framework Programme for Research, Technological Development and Demonstration Activities (2007-2013) concerning the activities of Mr and Mrs Piesiewicz, employees of the applicant.
7        On 1 June 2015, OLAF adopted its final report. In that report, the relationship between the applicant and Mr Piesiewicz was clarified. Between 25 January 2010 and 4 July 2013, Mr Piesiewicz was a partner and member of the applicant’s advisory board (unpaid) and, between 1 November 2011 and 20 April 2013, he was also a part-time and, subsequently, full-time employee of the applicant for the purposes of carrying out the activities set out in the grant agreements concluded under the Seventh Framework Programme for Research, Technological Development and Demonstration Activities (2007-2013).
8        On 2 April 2019, REA sent a pre-information letter and the OLAF report to the applicant, stating that it intended to take account of the conclusions contained in that report, recover ineligible costs and draw up the calculation of the amounts to be reimbursed.
9        In its letter of 7 May 2019, the applicant submitted that it had not infringed the provisions of the grant agreements.
10      On 13 November 2019, REA sent the applicant a new pre-information letter, in which it replied to the arguments put forward by the applicant in its letter of 7 May 2019 and explained why the rejected expenditure was recoverable (‘the contested measure’).
11      On 29 January 2020, REA sent four debit notes to the applicant, requesting payment of the total sum of EUR 36 458.22 by 16 March 2020 at the latest (‘the debit notes’).
12      On 1 April 2020, the European Commission sent the applicant four reminders concerning the payment of the amounts referred to in the debit notes.
13      On 24 April 2020, the Commission sent the applicant four letters of formal notice.
14      By application lodged at the Court Registry on 20 June 2020, the applicant brought an action for annulment of the contested decision.
15      By a separate document, lodged at the Court Registry on the same date, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:
–        stay the execution of the contested act;
–        refrain, until such time as the Court has delivered a final judgment, from any action against it seeking to initiate and continue enforcement and thus the executory procedure on the basis of the contested measure or debit notes or any other document;
–        order the interim measures before the defendant submits its observations.
16      In its observations on the application for interim measures, lodged at the Court Registry on 6 July 2020, REA contends that the President of the Court should:
–        reject the application for interim measures;
–        reserve the costs.
Law
17      It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
18      The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
19      The judge hearing an application for interim measures may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
20      In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
21      Having regard to the documents in the case file, the President of the Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
22      In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
23      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim measures is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts (order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27).
24      To attain that objective, urgency must, generally, be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
25      It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.
26      The applicant submits that the enforcement procedure is likely to result in serious and irreparable damage. It adds that the payment of an amount in the order of EUR 35 000.00, especially during the COVID-19 pandemic, may expose a private company such as itself to a serious limitation of its operations, or even liquidation, after 18 years of activity.
27      REA disputes the applicant’s arguments. It submits that the applicant has not established either the risk of harm to itself or that that harm was imminent, and has therefore failed to demonstrate the existence of urgency. First, it alleges that, in its application for interim measures, the applicant does not refer to or provide any evidence in support of its allegation of a risk of serious and irreparable harm. Second, it submits that the wording of the application for interim measures clearly states that the risk referred to is potential and not actual by the use of the word ‘may’. Third, REA maintains that the applicant does not provide any evidence, for example in the form of certified company accounts, to support its claim that the future enforcement of payment claims could indeed lead to a serious limitation of its operations or to its liquidation.
28      In the first place, it must be borne in mind that, in accordance with well-established case-law, there is urgency only if the serious and irreparable harm feared by the party requesting the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such damage is likely, it being clear that purely hypothetical damage, based on future and uncertain events, cannot justify the granting of interim measures (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 24 and the case-law cited).
29      In that regard, it should be pointed out that financial loss, as referred to by the applicant, could, in principle, be classified as imminent as soon as REA adopts a measure which is enforceable, within the meaning of the first paragraph of Article 299 TFEU, which definitively establishes its intention to pursue the recovery of its claims and which is capable of being enforced by an order for its enforcement being appended to that measure, as provided for in the second paragraph of Article 299 TFEU (see, to that effect, order of 8 May 2013, Talanton v Commission, T‑165/13 R, not published, EU:T:2013:235, paragraph 18).
30      Contrary to the applicant's assertion, the contested measure is not a decision affecting its legal position. In that measure, REA merely replied to the arguments put forward by the applicant against the measures which it intended to adopt. Furthermore, it expressly invited the applicant to submit comments and stated that the letter was a pre-information letter, which, as such, could not be challenged in court, as it did not represent a final decision.
31      In that regard, it should also be noted that REA subsequently issued the debit notes.
32      The contested measure therefore falls within a stage of the procedure prior to the issue of a debit note. It is settled case-law that a debit note, far from being a definitive act of an EU institution, body, office or agency is preparatory for such an act relating to the enforcement of a debt, since the EU institution, body, office or agency does not adopt a position as to the means which it intends to employ to recover that debt (see, to that effect, order of 8 May 2013, Talanton v Commission, T‑165/13 R, not published, EU:T:2013:235, paragraph 22 and the case-law cited).
33      It should be added that that case-law on the legal nature of a debit note has likewise been extended to the case-law concerning a reminder letter adopted following such a note. Where the debtor does not pay the amount claimed in the reminder letter, the institution, body, office or agency can either waive recovery of the debt, set off the debt or enforce a recovery decision which may take place either by way of an enforceable decision or through an enforceable title secured by a legal action (see, to that effect, order of 8 May 2013, Talanton v Commission, T‑165/13 R, not published, EU:T:2013:235, paragraph 23).
34      In the light of the case-law set out above, nor can the contested measure, which predates any debit note or reminder letter, be regarded as an enforceable measure. If the applicant fails to pay the sum claimed in that measure, REA may either waive recovery of its claim, set-off that claim, adopt an enforceable unilateral measure or bring an action before the General Court.
35      In the light of the foregoing, it must be concluded that the risk alleged by the applicant is purely hypothetical in that it is based on the occurrence of future and uncertain events and, as such, cannot justify the granting of interim measures.
36      In the second place, and in addition, the applicant has not shown that the payment of the amounts claimed by REA would imperil its financial viability before final judgment is given in the main action and that the resulting damage would therefore be irreparable.
37      In accordance with settled case-law, damage of a pecuniary nature cannot, other than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he suffered the damage (see order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).
38      However, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the applicant would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, as the case may be, the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited).
39      In order to determine whether these conditions are fulfilled, the judge hearing the application for interim measures must, according to well-established case-law, have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 10 July 2018, Synergy Hellas v Commission, T‑244/18 R, not published, EU:T:2018:422, paragraph 27 and the case-law cited). Furthermore, Article 156(4) of the Rules of Procedure expressly provides that an application for interim measures must contain all the evidence and offers of evidence available to justify the grant of the interim measures requested.
40      In that regard, it should be noted that, in accordance with the case-law referred to in paragraph 39 above, in order to demonstrate a risk to its financial viability, the applicant should have produced, with supporting documents, an accurate overall picture of its financial situation.
41      However, in so far as the applicant confines itself to mere assertions, unsupported by any evidence, it must be concluded that the applicant has failed to demonstrate urgency based on a risk to its financial viability.
42      The mere reference to the fact that the payment of an amount in the order of EUR 35 000.00, especially during the COVID-19 pandemic, may expose a private company such as the applicant to a serious limitation of its activities, or even to liquidation, cannot remedy the absence of specific information, with supporting documents, relating to its financial situation.
43      In those circumstances, it must be held that the applicant has failed to demonstrate urgency based on a risk to its financial viability.
44      It follows from all the foregoing that the application for interim measures must be dismissed, as the applicant has failed to establish urgency, without it being necessary to examine the admissibility of the application, to rule on the prima facie case or to undertake a weighing of the interests.
45      Under Article 158(5) of the Rules of Procedure, the costs must be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.
2.      The costs are reserved.
Luxembourg, 11 September 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.