62017TO0262
ORDER OF THE GENERAL COURT (Fourth Chamber)
15 May 2019 (
*1
)
(Action for annulment — Commission decision granting financing for the ‘Multimodal Container Terminal Paskov, Phase III’ and ‘Intermodal Terminal Mělník, Phases 2 and 3’ transport project proposals under the Connecting Europe Facility (CEF) — Period allowed for commencing proceedings — Point from which time starts to run — Delay — Inadmissibility)
In Case T‑262/17,
Metrans a.s., established in Prague (Czech Republic), represented by A. Schwarz, lawyer,
applicant,
v
European Commission, represented by J. Hottiaux and J. Samnadda, acting as Agents,
and
Innovation and Networks Executive Agency (INEA), represented by I. Ramallo and D. Silhol, acting as Agents, and by A. Duron, lawyer,
defendants,
APPLICATION under Article 263 TFEU for (i) annulment of Commission Implementing Decision C(2016) 5047 final of 5 August 2016 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 5 November 2015 based on the Multi-Annual Work Programme, in so far as it concerns two proposals entitled ‘Multimodal Container Terminal Paskov, Phase III’ and ‘Intermodal Terminal Mělník, Phases 2 and 3’, and (ii) annulment of the two grant agreements relating to those two proposals signed by the INEA.
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, President, J. Schwarcz and C. Iliopoulos (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1
The applicant, Metrans a.s., is a company incorporated under Czech law, predominantly active in the operation of intermodal terminals in the Czech Republic.
2
On 5 November 2015, the European Commission launched two calls for proposals, a ‘cohesion call [for proposals]’ and a ‘general call [for proposals]’, as part of the Multi-Annual Work Programme for financial assistance in the field of Connecting Europe Facility (CEF) — Transport sector for the period 2014-2020, as amended by Commission Implementing Decision C(2015) 7358 final of 30 October 2015. The deadline for submission of project proposals was set at 16 February 2016.
3
In all, 427 proposals were received, 140 of which were in response to the ‘cohesion call [for proposals]’. It is common ground that the applicant did not submit any proposals in response to the two calls for proposals. The participants in the ‘cohesion call [for proposals]’ included the companies Advanced World Transport a.s. (‘AWT’) and České přístavy a.s.
4
By press release of 17 June 2016, the Commission unveiled the list of 195 transport project proposals that would receive financing under the Connecting Europe Facility (CEF) — Transport sector, and stated that the proposed financing decision had to be formally approved by the CEF Coordination Committee, which was to meet on 8 July 2016.
5
By press release of 8 July 2016 published on its website, the Innovation and Networks Executive Agency (INEA), established in 2014 by Commission Implementing Decision 2013/801/EU of 23 December 2013 establishing the INEA and repealing Decision 2007/60/EC as amended by Decision 2008/593/EC (OJ 2013 L 352, p. 65), announced the CEF Coordination Committee’s favourable opinion on the list drawn up by the Commission of transport project proposals that would receive financing from the European Union under the CEF— Transport sector. A brochure, accessible by hyperlink, on the selected projects containing, inter alia, the information sheets for those projects was attached to the press release. The projects submitted by AWT (namely the Paskov project) and České přístavy (namely the Mělník project) appeared on pages 271 and 272 respectively of that brochure (see paragraph 8 below).
6
On 5 August 2016, the Commission adopted Implementing Decision C(2016) 5047 final establishing the list of proposals selected for receiving European Union financial assistance in the field of Connecting Europe Facility (CEF) — Transport sector following the calls for proposals launched on 5 November 2015 based on the Multi-Annual Work Programme (‘the Implementing Decision’). That list is set out in the annex to the Implementing Decision.
7
The Implementing Decision and its annex were uploaded on 30 August 2015 to the website of the relevant Directorate-General of the Commission (DG ‘Mobility and Transport’) at the address https://ec.europa.eu/transport/themes/infrastructure-ten-t-connecting-europe/reference-documents-work-programmes-selection_en, and, on 29 September 2015, to the register of Commission documents website, at the address http://ec.europa.eu/transparency/regdoc/, following a favourable response to a request for access to those documents.
8
The proposals submitted respectively by České přístavy, under reference 2015-CZ-TM-0406-W, entitled ‘Intermodal Terminal Mělník, Phases 2 and 3’ (‘the Mělník project’) and by AWT, under reference 2015-CZ-TM-0330-M, entitled ‘Multimodal Container Terminal Paskov, Phase III’ (‘the Paskov project’), were set out in the annex to the Implementing Decision and received financing as part of the priority ‘Connections to and development of multimodal logistics platforms’, under the heading ‘B) Funding allocation under cohesion [call for proposals]’.
9
Following the adoption of the Implementing Decision, the INEA signed, on 21 October and 7 November 2016 respectively, grant agreements (together with the Implementing Decision, ‘the contested measures’) with České přístavy, bearing the reference INEA/CEF/TRAN/M2015/1138714 (‘the Mělník project grant agreement’), and with AWT, bearing the reference INEA/CEF/TRAN/M2015/1133813 (‘the Paskov project grant agreement’).
10
The information sheets on the Mělník and Paskov projects were uploaded to the INEA’s website with downloadable files on the following dates: the Mělník project, on 7 November 2016, at 19:05 and the Paskov project, on 11 November 2016, at 11:58.
11
By email sent to the Commission on 5 December 2016, Mr A. Schwarz, the applicant’s representative in the present action, requested access to the contested measures, in so far as they related to the Mělník project.
12
On 22 December 2016, Mr Schwarz made a further request for access to the contested measures via the contact form on the INEA’s website.
13
By letter of 20 January 2017, the INEA, in response to those requests, responded to Mr Schwarz by sending him the contested measures.
Procedure and forms of order sought
14
By application lodged at the Court Registry on 30 April 2017, the applicant brought the present action.
15
The applicant claims that the Court should:
–
annul, with immediate effect, the Paskov project proposal and the Mělník project proposal set out in the annex to the Implementing Decision;
–
annul or, in the alternative, declare null and void the Paskov project grant agreement or order the INEA to terminate that agreement;
–
annul or, in the alternative, declare null and void the Mělník project grant agreement or order the INEA to terminate that agreement;
–
order the INEA and the Commission jointly and severally to pay the costs incurred by the applicant relating to the present proceedings.
16
By separate documents lodged at the Court Registry on 6 and 8 September 2017 respectively, the Commission and the INEA raised an objection of inadmissibility pursuant to Article 130 of the Rules of Procedure of the General Court.
17
The applicant submitted its observations on those two objections of inadmissibility on 21 October 2017.
18
In its objection of inadmissibility, the Commission contends that the Court should:
–
dismiss the action as inadmissible;
–
order the applicant to pay the costs incurred by the Commission.
19
In its objection of inadmissibility, the INEA contends that the Court should:
–
declare inadmissible the action brought against it;
–
order the applicant to pay the costs incurred by the INEA.
20
In its observations on the objections of inadmissibility, the applicant claims that the Court should:
–
dismiss the objections of inadmissibility as unfounded;
–
rule on the case in accordance with the form of order sought as it results from the application.
Law
21
Pursuant to Article 130(1) of the Rules of Procedure, a defendant may apply to the Court for a decision on inadmissibility without going to the substance of the case. In accordance with Article 130(6) of those rules, the Court may decide to open the oral part of the procedure in respect of the objection of inadmissibility.
22
In the present case, since the Commission and the INEA have applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on those applications without opening the oral part of the procedure.
23
In support of its objection of inadmissibility, the Commission raises two pleas of inadmissibility. The first alleges that the action was brought out of time, while the second alleges that the applicant was not individually concerned within the meaning of the fourth paragraph of Article 263 TFEU.
24
In support of its objection of inadmissibility, the INEA raises three pleas of inadmissibility, alleging, first, in line with the Commission’s first plea, that the action was brought out of time, secondly, that the applicant was not directly and individually concerned within the meaning of the fourth paragraph of Article 263 TFEU and, thirdly, that the challenge to the Implementing Decision cannot be directed against the INEA.
25
The Court considers it appropriate to examine first the plea of inadmissibility alleging that the action was brought out of time.
Arguments of the parties
26
The Commission submits that, in the present case, the relevant criterion for calculating the starting point of the two-month period prescribed by the sixth paragraph of Article 263 TFEU is the day on which the contested measures came to the applicant’s knowledge, namely 5 December 2016, the date of the first request for access to the contested measures submitted by Mr Schwarz (the applicant’s representative in the present action), or, at the latest, on 20 January 2017, the date on which all the documents were sent to Mr Schwarz, following his requests of 5 and 22 December 2016. The action, brought on 30 April 2017, was therefore brought outside the prescribed period.
27
More specifically, the Commission states that, following a meeting with Commission’s officials on 28 November 2016, Mr Schwarz, ‘acting on behalf of the applicant’, asked the Commission, by email of 5 December 2016, with the applicant’s CEO, Mr S, copied in, to grant him access to the documents concerning ‘the relevant decisions of the authorities approving CEF grants for the projects specified below’, including related documents, and the ‘agreements relating to the grants financing the following projects’. Mr Schwarz made a similar request to the INEA on 22 December 2016. The INEA, being responsible for responding to requests for access to documents submitted to the Commission, responded to Mr Schwarz on 20 January 2017, in its own name and on behalf of the Commission, by sending him the contested measures.
28
In the light of the foregoing, first, the Commission contends that, on the date of its first request for documents of 5 December 2016, or even before that date, the applicant was aware of not only the existence, but also the content of the Implementing Decision, including its annex. The requests for access were in fact submitted following the meeting with the Commission’s officials. Secondly, it submits that the requests for access to documents submitted on 5 and 22 December 2016 describe the Paskov and Mělník projects with such a level of detail and precision that they could only have been intended to confirm what the applicant already knew. The Implementing Decision had been uploaded to the Commission’s website on 30 August 2016 and the information sheets on the grant agreements for the Mělník and Paskov projects had been published on the INEA’s website on 7 and 11 November 2016 respectively. Thirdly, and in any event, the Commission notes that the applicant was in possession of the contested measures from 20 January 2017, which explains why the applicant was able to attach the documents of the grant agreements for the Mělník and Paskov projects, which are not publicly available, to its application. Even taking the latter date as the starting point of the period prescribed for instituting proceedings, the action was brought outside the prescribed period.
29
First, the INEA contends that the sixth paragraph of Article 263 TFEU provides that proceedings must be instituted within two months of the publication of the contested measure and that, according to paragraph 32 of the judgment of 26 September 2013, PPG and SNF v ECHA (C‑625/11 P, EU:C:2013:594), publication, within the meaning of that article, also includes the publication of such a measure on the internet. In that regard, the INEA points out that the Implementing Decision was adopted and published, inter alia, on the Commission’s website on 30 August 2016, the Paskov project grant agreement was published on the INEA’s website on 11 November 2016 and the Mělník project grant agreement on 7 November 2016. Accordingly, the INEA submits that, in accordance with Article 59 of the Rules of Procedure, the time limit allowed for initiating the present action started to run from the end of the fourteenth day after the publication of each of the contested measures on the internet.
30
Secondly, the INEA contends that the applicant became aware, first, of the Mělník project grant agreement and, in particular, the fact that České přístavy was the recipient, by no later than 5 December 2016, the date on which the applicant’s lawyer submitted the request for access to the documents relating to the financing of that project, and, second, of the Paskov project grant agreement, by no later than 22 December 2016, the date on which the applicant’s lawyer submitted a request for access to the documents relating to the Paskov and Mělník projects. In its response to a written question put by the Court, the INEA stated, as did the Commission, that the time limit allowed for initiating proceedings could also have started to run on 20 January 2017 at the latest, the date on which the applicant received copies of the grant agreements for the Paskov and Mělník projects.
31
The applicant claims, first, that the publication of the contested measures should normally be the main criterion for determining the point from which the applicable time limit for initiating proceedings starts to run and that the Commission and the INEA cannot rely on the criterion of the day on which the contested measure came to the applicant’s knowledge, since, on the one hand, they did not properly disclose the contested measures by means of a summary publication in the Official Journal of the European Union, as required by the case-law, and, on the other hand, publication on the websites of the Commission and the INEA cannot be regarded as publication within the meaning of the sixth paragraph of Article 263 TFEU.
32
Secondly, and in any event, the applicant disputes the argument put forward by the Commission and the INEA that it was in possession of the contested measures as from 20 January 2017, maintaining that neither it nor its representatives were notified of the contested measures by the Commission or the INEA and that, on 20 January 2017, the contested measures were sent only to the email address of its lawyer, Mr Schwarz, who, at that time, did not represent the applicant. In other words, the Commission and the INEA did not establish the exact date on which the time limit for initiating proceedings started to run. Lastly, the applicant suggests that the contested measures were not disclosed to it by Mr Schwarz until 12 April 2017, the date on which the law firm to which he belonged was instructed to represent the applicant in the present case.
Findings of the Court
33
Under the sixth paragraph of Article 263 TFEU, proceedings for annulment must be instituted within two months of the publication of the contested measure, or of its notification to the applicant or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. It is clear simply from the wording of that provision that the criterion of the day on which a measure came to the knowledge of an applicant, as the starting point of the period prescribed for instituting proceedings, is subsidiary to the criteria of publication or notification of the measure (judgment of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraph 35).
34
Next, under Article 59 of the Rules of Procedure, where the time limit allowed for initiating proceedings against a measure adopted by an institution runs from the publication of that measure in the Official Journal of the European Union, that time limit is to be calculated, for the purposes of Article 58(1)(a) of those rules, from the end of the fourteenth day after such publication.
35
Lastly, in accordance with Article 60 of the Rules of Procedure, that time limit must also be extended on account of distance by a single period of 10 days.
36
It is settled case-law that the period for instituting proceedings prescribed in the sixth paragraph of Article 263 TFEU is a matter of public policy and the strict application of procedural rules serves the requirements of legal certainty by preventing European Union measures which produce legal effects from being called in question indefinitely (see order of 25 November 2008, S.A.BA.R. v Commission, C‑501/07 P, not published, EU:C:2008:652, paragraph 22 and the case-law cited) and the need to avoid any discrimination or arbitrary treatment in the administration of justice (order of 30 September 2014, Faktor B. i W. Gęsina v Commission, C‑138/14 P, not published, EU:C:2014:2256, paragraph 17).
37
Furthermore, it is the responsibility of the party alleging that an action is out of time, in view of the time limit fixed, inter alia, by the sixth paragraph of Article 263 TFEU, to provide evidence of the date on which the event causing time to begin to run occurred (see, to that effect, judgment of 6 December 2012, Evropaïki Dynamiki v Commission, T‑167/10, not published, EU:T:2012:651, paragraph 39 and the case-law cited).
38
In the present case, it must be stated at the outset that the parties do not dispute that the criterion of notification of the contested measures, for the purposes of the sixth paragraph of Article 263 TFEU, is not applicable, since the applicant is not the addressee of those measures. In order to rule on assertion that the action was brought out of time, it therefore falls to the Court to determine, first, whether the criterion of publication of the contested measure, for the purposes of the sixth paragraph of Article 263 TFEU, is applicable in the present case. In the negative, in the light of the fact that the criterion of the day on which the contested measure came to the applicant’s knowledge is subsidiary to the criterion of publication, it is necessary to rule on the factual question of whether the contested measures actually came to the applicant’s knowledge by 20 January 2017 at the latest, as the Commission and the INEA contend.
The publication of the contested measures for the purposes of the sixth paragraph of Article 263 TFEU
39
It must be stated at the outset that, in order for the publication of the contested measures to be the starting point of the period prescribed for instituting proceedings for the purposes of the sixth paragraph of Article 263 TFEU, such publication must either be required by a provision of primary or secondary EU law, or, at the very least, result from consistent practice which the applicant could legitimately expect (see, to that effect, judgments of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraphs 36 and 37, and of 15 June 2005, Olsen v Commission, T‑17/02, EU:T:2005:218, paragraph 77).
40
In the first place, as regards the requirement of publication under primary EU law, the applicant maintains that the Commission was required to disclose the Implementing Decision or, at the very least, a summary notice of that decision in the Official Journal of the European Union pursuant to the second subparagraph of Article 297(2) TFEU, which provides that ‘decisions which do not specify to whom they are addressed, shall be published in the Official Journal of the European Union’. More specifically, according to the applicant, as the Implementing Decision does not specify to whom it is addressed, it is ‘exactly the same’ as the decisions referred to in that provision of Article 297 TFEU. The applicant observes, in that regard, that the list of proposals which forms the annex to the Implementing Decision by no means lists specific addressees — it refers only to the projects that have received funding under the CEF.
41
In that regard, it should be recalled that Article 297(2) TFEU provides as follows:
‘Non-legislative acts adopted in the form of regulations, directives or decisions, when the latter do not specify to whom they are addressed, shall be signed by the President of the institution which adopted them.
Regulations and directives which are addressed to all Member States, as well as decisions which do not specify to whom they are addressed, shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.
Other directives, and decisions which specify to whom they are addressed, shall be notified to those to whom they are addressed and shall take effect upon such notification.’
42
In the present case, first of all, it must be stated that the Implementing Decision is an implementing act adopted by the Commission, on the basis of Article 18 of Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11 December 2013 establishing the [CEF], 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’), and in accordance with the procedure laid down in Article 25 of that regulation, in the exercise of its implementing powers, within the meaning of Article 291(2) TFEU. It is therefore a non-legislative act within the meaning of Article 297(2) TFEU.
43
Next, as regards the question whether the Implementing Decision may be regarded as a decision which ‘[does] not specify to whom [it] is addressed’ within the meaning of the second subparagraph of Article 297(2) TFEU, it must be recalled that, according to the case-law, the term ‘addressee’ refers to a person whose identity is sufficiently determined in the decision in question and to whom the decision is to be communicated. Moreover, it has been held that the essential characteristics of a decision, compared to an act of general application, arise from the limitation of the persons to whom it is addressed, who are indicated or identifiable (see order of 13 March 2015, European Coalition to End Animal Experiments v ECHA, T‑673/13, EU:T:2015:167, paragraph 24 and the case-law cited).
44
In the light of that case-law, it must be stated that the Implementing Decision nowhere explicitly indicates its addressee(s). It does, however, identify and indicate the candidates whose proposals have been accepted for receiving European Union financial assistance. Article 1 of that decision provides for the approval of ‘the list of projects of common interest in the field of [CEF] 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, as laid down in the annex’. The annex, which thus forms an integral part of the Implementing Decision, sets out, in addition to the list of selected proposals, the name of each of the applicants selected for receiving EU financial assistance. Therefore, and contrary to what is claimed by the applicant, the annex to the Implementing Decision does not merely list the projects that have received funding under the CEF, but identifies by name addressees whose identity is sufficiently determined. It follows that, although the Implementing Decision does not expressly indicate the addressees, the very content of that decision makes it clear that there are addressees (see, to that effect, order of 13 March 2015, European Coalition to End Animal Experiments v ECHA, T‑673/13, EU:T:2015:167, paragraph 26).
45
Accordingly, it must be concluded that, contrary to what is claimed by the applicant, the Implementing Decision cannot be regarded as a decision which ‘does not specify to whom it is addressed’ within the meaning of the second subparagraph of Article 297(2) TFEU, but as a decision which ‘specifies’ to whom it is addressed within the meaning of the third subparagraph of Article 297(2) TFEU.
46
That conclusion is, moreover, confirmed by the fact that Article 2 of the Implementing Decision states that the Commissioner responsible for Mobility and Transport is empowered to inform those applicants ‘whose projects have not been selected’ of the final outcome of the examination of their application, whereas that decision, in accordance with the third subparagraph of Article 297(2) TFEU, should have been notified to the applicants whose projects have been selected.
47
In that regard, it is necessary to examine the Commission’s contention that the Implementing Decision ‘was not notified to any candidate, whether its proposal was rejected or selected’. That omission relating to the notification of the Implementing Decision, although it may affect the date on which that decision takes effect, cannot, in the context of examining the admissibility of the action and determining the starting point of the period prescribed for instituting proceedings, invalidate the conclusion that the Commission was not required to publish that decision in the Official Journal of the European Union pursuant to the second subparagraph of Article 297(2) TFEU (see, to that effect, judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraphs 43 and 44).
48
In the second place, it must be stated that no requirement to publish was imposed, in the present case, by secondary EU law. In that regard, first of all, it should be noted that although, under Article 13(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), the Implementing Decision must be published in the Official Journal of the European Union, in so far as it falls within the category of ‘decisions other than those referred to in Article [297(1) TFEU]’, that publication takes place only ‘as far as possible’. It must therefore be held that, while the publication at issue is an objective to be observed, it is not, however, mandatory (see, to that effect, judgment of 27 November 2003, Regione Siciliana v Commission, T‑190/00, EU:T:2003:316, paragraph 139).
49
Next, with regard to Article 13(3) of Regulation No 1049/2011, which provides that ‘each institution may in its rules of procedure establish which further documents shall be published in the Official Journal’, it must be stated that neither the Commission’s rules of procedure nor those of the INEA lay down a provision relating to the publication of ‘further documents’.
50
Lastly, as the Commission contends, the legislative provisions in force that are applicable to the CEF do not require the publication of decisions adopted in the field of the CEF. Article 28(2) of the CEF Regulation, entitled ‘Information, communication and publicity’, which is the sole provision relating to publication, provides that ‘the Commission shall implement information and communication actions relating to the CEF projects and results’, thus making no mention of any publication of decisions adopted in the field of CEF.
51
In the third place, as regards the question whether publication in the Official Journal of the European Union resulted from consistent practice which the applicant could legitimately expect, the applicant does not put forward any evidence in support of such practice.
52
On the basis of that analysis, it is clear that the Commission was not required to disclose the Implementing Decision by means of publication. Furthermore, it has not been established that such publication result from consistent practice of the institution concerned which the applicant could legitimately expect.
53
The finding that there is no requirement to publish the Implementing Decision and the grounds underlying that finding can also be applied to the two grant agreements at issue, in so far as they are not subject to a publication regime distinct from that of implementing decisions.
54
In the light of the foregoing, it must be concluded that, in the present case, the criterion of publication, as the starting point of the period prescribed for instituting proceedings, cannot be regarded as relevant for the purposes of applying the sixth paragraph of Article 263 TFEU. Whether the action was brought out of time must therefore be determined on the basis of the date on which the contested measures came to the applicant’s knowledge, the subsidiary criterion laid down in that article.
The day on which the contested measures came to the applicant’s knowledge
55
As regards the day on which the contested measures came to the applicant’s knowledge, it is apparent from the documents in the case file that, following the informal meeting, in Brussels (Belgium), with the Commission’s officials on 28 November 2016, Mr Schwarz, the applicant’s representative in the present action, requested access to the contested measures.
56
More specifically, by email of 5 December 2016 sent to the Commission’s officials that were present during the meeting of 28 November 2016, with the applicant’s CEO, Mr S, copied in, Mr Schwarz stated the following:
‘Following our meeting in your offices, we would like to request access to the documents and information relating to the financing of the [Mělník project] (as published on the website under the link https://ec.europa.eu/inea/en/connecting-europe-facility/cef-transport/2015-cz-tm-0406-w).
In particular, we ask you to send us: the grant agreement [for the Mělník project], the decision(s) of the competent European Union authorities approving that financing and any other relevant information, as the case may be, providing more detail and clarity as to what exactly is subject to financing by means of the action in question.’
57
That request for access of 5 December 2016 was sent by Commission staff to the INEA on 6 December 2016, in accordance with point 2.7.2, headed ‘Management of and access to documents’, of the Memorandum of Understanding between the INEA and, inter alia, the relevant Directorate-General of the Commission, of 15 February 2016.
58
Next, on 22 December 2016, Mr Schwarz made the following request via the contact form on the INEA’s website:
‘We kindly ask you to provide us with the following documents:
–
the relevant decision(s) of the authorities approving CEF grants for the projects specified below;
–
agreements on the financing of grants to the projects below;
–
information on the State aid assessment of the projects in question;
–
information on the projects, how the funds will be utilised, the text of submissions to calls and information on how competition concerns will be resolved.
The above request relates to following projects: [the Paskov project] [the Mělník project]’.
59
By letter of 20 January 2017, the INEA, being responsible, in accordance with paragraph 2.7.2 of the Memorandum of Understanding, for responding also on behalf of the Commission to the requests for access submitted by Mr Schwarz on 5 and 22 December 2016, responded to Mr Schwarz by sending him the contested measures.
60
It is thus established that, on 20 January 2017, Mr Schwarz was in possession of all the relevant information and the contested measures, namely copies of the Implementing Decision and non-confidential copies of the two grant agreements at issue.
61
It therefore remains to be ascertained whether, on that date of receiving the documents, Mr Schwarz acted on his own initiative as an independent consultant, as the applicant maintains, or as the applicant’s representative, which, according to the Commission and the INEA, confirms that the date on which the contested measures came to the applicant’s knowledge was 20 January 2017, the date on which Mr Schwarz received the documents and sent them to the applicant.
62
In that regard, in the first place, it must be stated that it is apparent from the documents in the file that, in the response of 21 November 2016 to the email sent to him by the Commission to schedule the meeting of 28 November 2018, the applicant’s CEO, Mr S, stated the following: ‘We will come (our lawyer [Mr Schwarz] and myself) on 28 November at 9:30.’ Accordingly, it is clearly indicated to the Commission’s officials that Mr Schwarz acted as the applicant’s lawyer during the meeting. Moreover, Mr Schwarz and Mr S were the only participants in the meeting with the Commission’s officials and Mr Schwarz did not give the impression that he also represented another party during that meeting or that he acted on his own behalf. The applicant’s description of the role of Mr Schwarz at the meeting, namely ‘to assist Mr [S] in the event that the discussion concerned a legal and technical subject with regard to the issues relating to State aid and competition law’, is entirely consistent with that of the role of a lawyer acting on behalf of his client. Likewise, the fact that, as the applicant states, Mr Schwarz’s participation was ‘limited to presenting his disagreement with [the Commission official’s] view that the European Commission [was] not bound by the rules on State aid, as provided for in the Lisbon Treaty’, corroborates that role as the applicant’s lawyer.
63
In the second place, it should be noted that, at the meeting of 28 November 2016, the applicant requested a copy of the Mělník project grant agreement and the Commission’s officials responded by inviting it to submit an official request for access to the documents to the INEA, which was, in fact, done by Mr Schwarz on 5 December 2016. It is therefore clear from those facts that the Commission’s officials cannot be criticised for considering that Mr Schwarz acted as a legal adviser to the applicant and Mr S following the meeting of 28 November 2016. Accordingly, it is irrelevant whether Mr Schwarz was or was not authorised to represent the applicant.
64
In the third place, Mr Schwarz expressly referred to the meeting of 28 November 2016 in his first request for access to the documents and Mr S was copied in to that request. Accordingly, as observed by the INEA, it is difficult to envisage that such actions were the personal initiative of Mr Schwarz undertaken without coordination and without the applicant’s approval. The mere fact that Mr S was copied in indicates that it was an action approved by the applicant and, in any event, that the applicant was completely aware of Mr Schwarz’s actions. Furthermore, concerning the fact that Mr Schwarz did not copy in the applicant when he submitted the second request for access to documents of 22 December 2016, that is because it was submitted via the INEA’s online contact form, which did not enable such a function.
65
That finding is supported by the fact that, in the two requests for access to documents, Mr Schwarz continuously uses the plural, which clearly relates to the only other person copied in to the initial request, Mr S. In that particular factual context, the applicant’s explanation that ‘use of the plural is a standard formal style, particularly when the formal correspondence is sent by a law firm’, cannot be accepted.
66
In the light of the foregoing, it must be concluded that the contested measures were indisputably brought to the applicant’s attention by Mr Schwarz on 20 January 2017 and, consequently, that the action was brought outside the prescribed period.
67
That conclusion cannot be called into question by the case-law relied on by the applicant, according to which, ‘where the applicant became aware of the contested measure from a letter of which the date of receipt could not be definitely established, the period for instituting proceedings starts to run on the date on which the applicant itself referred to the measure in a letter’, which relates to the notification of a measure. Since the Implementing Decision was not notified to the applicant for the purposes of the sixth paragraph of Article 263 TFEU, that case-law is irrelevant. In any event, the case-law relied on by the applicant does not lay down such a principle. The order of 28 April 1994, Pevasa and Inpesca v Commission (T‑452/93 and T‑453/93, EU:T:1994:45), states, in paragraph 36, that awareness of the contested measures at issue in that case necessarily arose, at the latest, on the date of the reference to those measures in the letter sent by the applicants. It does not follow, contrary to what the applicant claims, that an earlier date cannot be accepted. As regards the judgment of 8 November 2000, Dreyfus v Commission (T‑485/93, T‑491/93, T‑494/93 and T‑61/98, EU:T:2000:255), also relied on by the applicant, it does not address the issue of a lack of definite date of receipt of a communication.
68
Nor, lastly, can the Commission and the INEA be criticised for not requesting Mr Schwarz to produce a power of attorney or authorisation granted by the applicant. In accordance with Article 2(1) and Article 6(1) of Regulation No 1049/2001 and the case-law, access to documents is not conditional upon a person’s legal interest in obtaining access to documents (see, to that effect, order of 26 October 2016, Edeka-Handelsgesellschaft Hessenring v Commission, T‑611/15, not published, EU:T:2016:643, paragraph 45). Thus, the Commission was not required to ask Mr Schwarz, at the moment of his request, whether he was acting in the name and on behalf of another person or entity or a fortiori to request Mr Schwarz to produce an authorisation for that purpose.
69
In the light of the foregoing, the plea of inadmissibility alleging that the action was brought out of time must be upheld and the action must be dismissed as being inadmissible, without it being necessary to continue the examination of the pleas of inadmissibility alleging, on the one hand, that the applicant was not directly and individually concerned within the meaning of the fourth paragraph of Article 263 TFEU, and, on the other hand, that the challenge to the Commission’s Implementing Decision cannot be directed against the INEA.
Costs
70
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.
71
Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the Commission and the INEA.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.
The action is dismissed as inadmissible.
2.
Metrans a.s. shall bear its own costs and pay those incurred by the European Commission and by the Innovation and Networks Executive Agency (INEA).
Luxembourg, 15 May 2019.
E. Coulon
Registrar
H. Kanninen
President
(
*1
)	Language of the case: English.