ORDER OF THE GENERAL COURT (Fourth Chamber)
30 January 2019 (*)
(Action for annulment — Financial assistance in the field of Connecting Europe Facility — Transport sector for the period 2014-2020 — Lis pendens — Inadmissibility)
In Case T‑149/16
Spliethoff’s Bevrachtingskantoor BV, established in Amsterdam (the Netherlands), represented initially by P. Glazener, then by Y. de Vries and D. Coumans and finally by Y. de Vries and J. de Kok, lawyers,
applicant,
v
European Commission, represented by J. Hottiaux and J. Samnadda, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for 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 (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, Spliethoff’s Bevrachtingskantoor BV, is a company established in Amsterdam (Netherlands). It operates a fleet of multi-purpose vessels.
2        On 11 September 2014, the Innovation and Networks Executive Agency (INEA), set up 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), launched a call for proposals under the Connecting Europe Facility (‘CEF’) — Transport sector, on the basis of the Multi-Annual Work Programme adopted in 2014.
3        On 25 February 2015 the applicant submitted a proposal for financial support in response to the abovementioned call for proposals.
4        On 17 July 2015, INEA sent an email to the applicant, signed by the INEA team responsible for the evaluation (‘the email of 17 July 2015’). The text of that email was 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:
...
Procedural steps for the adoption by the … Commission of a decision on the selection and award of grants ... [are] currently ongoing. In the unlikely case that the adoption of this decision results in changes in relation to your proposal, you will be informed separately by email.
...
Any request you may make … or any complaint for maladministration, will have neither the purpose nor the effect of suspending the time limit for lodging an action for annulment of the Commission’s decision notified by this message, which must be done within two months of notification of this message ...’
5        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 CEF — Transport sector following the calls for proposals launched on 11 September 2014 based on the Multi-Annual Work Programme (‘the Commission’s decision of 31 July 2015’). That decision approved the list of projects of common interest in the field of CEF which had been 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.
6        The Commission’s decision of 31 July 2015 was not communicated to the applicant, who, according to the Commission, did not receive any other information with the exception of the email of 17 July 2015. That decision was placed on the Commission’s website on 12 October 2015 and, separately, on INEA’s website on 14 October 2015.
7        Prior to that placing on the website, on 25 September 2015, that is, within the deadline set by the email of 17 July 2015, the applicant lodged an action for annulment before the General Court, registered under number T‑564/15, against the Commission, in which it contends that the Court should annul the email of 17 July 2015 on the basis of the same pleas as those developed in the present action.
8        On 18 December 2015, the Commission, in response to the action of 25 September 2015, registered under number T‑564/15, raised an objection of inadmissibility in support of which it put forward two pleas of inadmissibility, namely, first, that the email of 17 July 2015 is not an act open to challenge and, second, that the fact that the Commission was not the institution which adopted that act and that, consequently, the action cannot be directed against it.
Events subsequent to the bringing of the action
9        By order of 11 October 2016, Spliethoff’s Bevrachtingskantoor v Commission (T‑564/15, not published, ‘the order of the General Court’, EU:T:2016:611), the General Court dismissed as inadmissible the action of 25 September 2015, registered under number T‑564/15. In support of that decision, the General Court upheld the two pleas of inadmissibility raised by the Commission in support of the objection of inadmissibility.
10      By application lodged at the Registry of the Court of Justice on 8 December 2016, the applicant brought an appeal against the order of the General Court, pursuant to Article 56 of the Statute of the Court of Justice of the European Union.
11      By judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510, ‘the judgment on the appeal’), the Court of Justice set aside the judgment of the General Court, referred the case back to the General Court and reserved the costs. The Court held that the General Court had erred in law in that it had dismissed as inadmissible the action brought by the applicant on the ground that the act challenged was the email of 17 July 2015 and rejected the applicant’s request that its action be regarded as being directed against the Implementing Decision of 31 July 2015 (judgment on the appeal, paragraph 73).
Procedure and forms of order sought
12      By application lodged at the General Court Registry on 11 April 2016, the applicant brought the present action.
13      By letter of 6 October 2016, the parties were informed of the change in the composition of the Chambers of the General Court pursuant to Article 27(5) of the Rules of Procedure of the General Court and the assignment of the Judge Rapporteur to the Fourth Chamber, to which the present case was therefore assigned.
14      By separate document lodged at the Court Registry on 10 October 2016, the Commission raised an objection of inadmissibility under Article 130 of the Rules of Procedure. On 28 November 2016, the applicant submitted its observations on the objection of inadmissibility. By order of 7 April 2017, consideration of the objection of inadmissibility was reserved for the final judgment.
15      By letter lodged at the General Court Registry on 6 October 2017, the applicant requested a hearing.
16      By document lodged at the General Court Registry on 29 June 2018, the applicant requested that the present case be joined to Case T‑564/15.
17      By measure of organisation of procedure of 24 July 2018, the General Court invited the parties to submit their observations on a possible lis pendens which the appeal in the present case could face having regard to Case T‑564/15, account being taken of the interpretation of the subject matter of the action in the latter case which had been accepted by the Court in paragraph 71 of the judgment on the appeal.
18      The applicant and the Commission complied with that request on 31 July and 3 August 2018 respectively.
19      The applicant stated in its observations of 31 July 2018 that the Court’s considerations in the judgment on the appeal left little doubt that the action in Case T‑564/15 and in the present case concerned the same subject matter and involved the same parties, which created a situation of lis pendens. The Commission maintained, in its observations of 3 August 2018, that the conditions of lis pendens with regard to the action in Case T‑564/15 were fulfilled and that the action in the present case was therefore inadmissible.
20      On 21 August 2018, the Commission lodged its observations on the joinder request. By decision of 18 September 2018, the President of the Fourth Chamber of the General Court decided not to join the two cases at that stage of the procedure.
21      In its application, the applicant claims that the Court should:
–        annul the Commission’s decision of 31 July 2015;
–        order the Commission to take a new decision with respect to the applicant’s proposal, taking account of the judgment of the General Court, within three months from the date of judgment in the present case;
–        order the Commission to pay the costs.
22      In support of its objection of inadmissibility, the Commission contends that the General Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
23      In its observations on the objection of inadmissibility, the applicant claims that the General Court should:
–        dismiss the objection of inadmissibility;
–        order the Commission to pay the costs.
24      In its defence, the Commission contends that the General Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
25      In its rejoinder, the Commission states that its heads of claim are unchanged.
26      In its observations of 3 August 2018, the Commission contends that the Court should:
–        dismiss the action as inadmissible due to lis pendens.
Law
27      Under Article 129 of its Rules of Procedure, the Court may at any time, of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case, including the conditions governing the admissibility of an action (see order of 15 March 2016, Larymnis Larko v Commission, T‑576/14, not published, EU:T:2016:169, paragraph 13 and the case-law cited).
28      According to settled case-law, an action which is between the same parties and has the same purpose, on the basis of the same submissions, as an action brought previously must be dismissed as inadmissible (see orders of 21 June 2012, Hamas v Council, T‑531/11, not published, EU:T:2012:317, paragraph 15 and the case-law cited, and of 7 January 2015, Cham and Bena Properties v Council, T‑607/14, not published, EU:T:2015:12, paragraph 17 and the case-law cited).
29      In the present case, first, it should be noted that, in accordance with the judgment on the appeal, the action in Case T‑564/15 should be interpreted as seeking annulment of the Commission’s decision of 31 July 2015.
30      Second, the action brought in the present case and the action brought in Case T‑564/15 are based on the same pleas.
31      Third, the present action and the action in Case T‑564/15 have been brought by the same applicant and concern the same defendant.
32      The present action therefore involves the same parties in opposition and serves the same purpose, on the basis of the same pleas, as the action in Case T‑564/15.
33      It follows that the present action, which was lodged after that in Case T‑564/15, must be dismissed as inadmissible.
Costs
34      Under Article 134 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 135(1) of those rules, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any.
35      In that regard, the applicant requests that the Commission be ordered to pay the costs which result from the unfounded objection of inadmissibility raised in Case T‑564/15.
36      In the present case, account being taken of the circumstances which gave rise to the situation of lis pendens, Article 135(1) of the Rules of Procedure will be applied by ordering each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
Hereby orders:
1.      The action is dismissed as being inadmissible.
2.      Spliethoff’s Bevrachtingskantoor BV and the European Commission shall bear their own costs.
Luxembourg, 30 January 2019.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.