ORDER OF THE COURT (Seventh Chamber)

21 April 2016 ( )

(Appeal — Article 181 of the Rules of Procedure of the Court — Intra-ACP programme (African, Caribbean and Pacific States) of the Global Climate Change Alliance (GCCA) — European Commission’s request to terminate the mission of an expert chosen by the other contracting party — Action for annulment — Right to an effective judicial remedy)

In Case C‑279/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 June 2015,

Alexandre Borde, residing in Paris (France),

Carbonium SAS, established in Paris,

represented by A. Herzberg, Rechtsanwalt,

appellants,

the other party to the proceedings being:

European Commission, represented by S. Bartelt and F. Moro, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of C. Toader (Rapporteur), President of the Chamber, and A. Rosas and E. Jarašiūnas, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

makes the following

Order

1 By their appeal, Alexandre Borde and Carbonium SAS seek to have set aside the order of the General Court of the European Union of 25 March 2015 in Borde and Carbonium v Commission (T‑314/14, unpublished, EU:T:2015:197) (‘the order under appeal’) in which the General Court dismissed their action for annulment of the Commission’s requests of 19 and 20 February 2014 to terminate Mr Borde’s assignment as an expert involved in the performance of framework contract EuropeAid/127054/C/SER/Multi (‘the framework contract’), concerning a mission for the evaluation of the Intra-ACP programme of the GCCA (‘the requests at issue’).



Background to the dispute

2 The relevant background to the dispute, as set out in the order under appeal, may be summarised as follows.

3 On 8 October 2009, the European Commission concluded a framework contract, in the context of its EuropeAid programme and of its multiple framework contract entitled ‘Beneficiaries 2009’, with a consortium led by Euronet Consulting EEIG (‘the other contracting party’), whose members include Nordic Consulting Group (‘NCG’). The subject-matter of the framework contract was the short-term recruitment of experts in the environment sector for projects in the field of external aid in the exclusive interest of third countries benefiting from that aid.

4 The framework contract first of all comprises special conditions and a set of annexes, which include Annex I, containing the general conditions governing the contract, and Annex II, containing the global terms of reference. Article 11 of the special conditions confers exclusive jurisdiction on the courts of Brussels (Belgium) for settling disputes arising out of or relating to the framework contract or a specific contract concluded by the Commission in the context of the framework contract.

5 Secondly, the general conditions of the framework contract, in Article 17.2 thereof, provide that ‘in the course of performance, and on the basis of a written and justified request, to which the [other contracting party] shall provide [its] own and the staff member’s observations, the Contracting Authority can ask for a replacement if it considers that a member of staff is inefficient or does not perform [his] duties under the contract.’

6 Lastly, point 3.2 of the global terms of reference provides that the other contracting party is responsible for all administrative aspects of the assignment entrusted to it by a specific contract, such as, in particular, establishing a contract with the experts.

7 Pursuant to the framework contract, on 20 and 27 December 2013 the Commission concluded two specific contracts with the other contracting party, bearing reference 2013/336038 and 2013/331334, respectively. The terms of those contracts foresaw the use of two experts for evaluation assignments in respect of two Commission programmes: the final evaluation of the GCCA programme and the mid-term evaluation of the GCCA programme in the context of the intra-ACP programme under the 10th European Development Fund.

8 Following the conclusion of the specific contracts between the Commission and the other contracting party, NCG concluded four agreements with Mr Borde covering his services as an expert with regard to the evaluation of the GCCA programme.

9 Each of those four expert service agreements stipulate in their clause 15.3 that any disagreement between Mr Borde and NCG in consequence of or connected to the agreement, and which cannot be settled amicably, is to be settled by arbitration under Belgian law.

10 Mr Borde’s assignment as expert for the evaluation of the GCCA programme started on 30 December 2013 and was to end within a period of 25 weeks with the submission of the final report. In the context of the evaluation of the GCCA programme, it was envisaged that his first mission would be in Fiji. That mission took place from 17 to 21 February 2014.

11 On the basis of feedback received from the EU Delegation, Commission staff expressed their concerns to NCG about Mr Borde’s lack of professionalism — which, in their view, risked jeopardising the success of the whole evaluation — in two e-mails sent on 19 and 20 February 2014, and asked for him to be replaced.

12 NCG replied that it shared those concerns and proposed that Mr Borde complete his work with respect to the mission in Fiji, but that a replacement would be sought for the subsequent missions.

13 By the requests at issue, the Commission expressed doubts to NCG as regards Mr Borde’s ability to achieve the objectives he had been set and, in order to avoid the risk of the quality of the evaluation being jeopardised, proposed that the expert’s mission be terminated and the search for a replacement initiated. NCG immediately contacted Mr Borde in order to inform him of the Commission’s request.

14 On 26 February 2014, NCG e-mailed the Commission Mr Borde’s remarks concerning his mission in Fiji, in which he disputed the facts which had led the Commission to request the termination of his mission.

15 On 27 February 2014, that institution acknowledged receipt of Mr Borde’s remarks by e-mail addressed to NCG. It also noted that, since he was unsuitable for carrying out the mission entrusted to him, it had requested that he be replaced under the provisions of the framework contract.

16 Subsequently, on a proposal by the other contracting party dated 2 March 2014, the Commission accepted a new junior expert without it being necessary to modify the specific contracts with the other contracting party under the terms of Article 20.1 of the general conditions of the framework contract. In line with point 5.4.3 of the guidelines of that contract, it was sufficient to introduce into the Commission’s internal system a rider to the specific contracts concerning the replacement of Mr Borde by another junior expert, which was done on 21 March 2014 and subsequently notified to the other contracting party.

The proceedings before the General Court and the order under appeal

17 By application lodged at the Registry of the General Court on 29 April 2014, Mr Borde and Carbonium SAS brought an action for annulment of the requests at issue.

18 By separate document lodged at the Registry of the General Court on 27 August 2014, the Commission raised a plea of inadmissibility, pursuant to Article 114(1) of the Rules of Procedure of the General Court.

19 On 14 October 2014, Mr Borde and Carbonium SAS lodged their observations concerning that plea and requested that the General Court reject it.

20 By the order under appeal, adopted pursuant to Article 114 of those Rules, the General Court, without opening the oral procedure, upheld the plea of inadmissibility and dismissed the action.

Forms of order sought

21 In their appeal, Mr Borde and Carbonium SAS claim that the Court should:

– set aside the order under appeal;

– declare the action admissible;

– primarily, give final judgment on the substance of the action and annul the requests at issue or, in the alternative, refer the case back to the General Court for that court to rule on the substance or, in the further alternative, refer the case back to the General Court for that court to examine the admissibility and merits of the action together, and

– order the Commission to pay the costs.

22 The Commission contends that the Court should:

– dismiss the action as in part inadmissible and in part unfounded and

– order Mr Borde and Carbonium SAS to pay the costs.

The appeal

23 Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

24 It is appropriate to apply that provision to the present case.

25 In support of their appeal, Mr Borde and Carbonium SAS put forward six grounds of appeal. The first of those grounds alleges that the General Court distorted the clear sense of the evidence. By their second to fifth grounds, Mr Borde and Carbonium SAS claim that the General Court erred in law in the application of the fourth paragraph of Article 263 TFEU. Thus, by their second ground, they argue that the General Court incorrectly held that challengeable acts were restricted to acts defined under Article 288 TFEU. The third ground alleges that the General Court erred and should have found that the requests at issue constituted a decision within the meaning of Article 288 TFEU. By their fourth ground, Mr Borde and Carbonium SAS claim that the General Court incorrectly held to be decisive the fact that those requests are inseparable from the contractual framework. The fifth ground concerns the application, with regard to a triangular relationship, of criteria developed in the Court’s case-law concerning bilateral relationships. By their sixth and final ground, Mr Borde and Carbonium SAS submit that the General Court infringed their right to an effective judicial remedy.

The first ground of appeal

– Arguments of the parties

26 By their first ground, Mr Borde and Carbonium SAS claim that the General Court’s statement of the facts is ‘inaccurate and distorted ..., disregarding the appellants’ right to be heard’.

27 The Commission contends that the first ground is, primarily, inadmissible and, on a subsidiary basis, ineffective.

– Findings of the Court

28 Pursuant to consistent case-law of the Court of Justice, it is apparent from Articles 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on points of law only and thus that the General Court has exclusive jurisdiction to establish and assess the relevant facts and evidence. The establishment of those facts and the assessment of that evidence thus do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice on appeal (see order of 10 July 2012 in Rügen Fisch v OHIM, C‑582/11 P, unpublished, EU:C:2012:434, paragraph 46 and the case-law cited therein).

29 Where an appellant alleges distortion of the evidence by the General Court, he must, pursuant to Article 256 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 168(1)(d) of its Rules of Procedure, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion. Moreover, it is the Court’s settled case-law that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (judgments of 17 June 2010 in in Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 16 and the case-law cited therein, and 27 October 2011 in Austria v Scheucher — Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 59 and the case-law cited therein).

30 In the present case, the General Court found, in paragraphs 4 and 5 of the order under appeal, that Article 17.2 of the general conditions of the framework contract allowed the Contracting Authority, in the course of performance of the contract, to ask for a replacement of a person if it considered that he was inefficient or did not perform his duties under the contract. The contractual provisions also provided that the other contracting party was to be responsible for all administrative aspects of the assignment entrusted to it.

31 In paragraph 31 of the order under appeal, the General Court inferred from those facts that the requests at issue fell within the context of the framework contract between the Commission and the other contracting party, in that they concerned the replacement of an expert, that replacement having its basis in the provisions of that contract.

32 It must be stated that Mr Borde and Carbonium SAS have not proven that the General Court’s findings are based on a clear distortion of the evidence submitted before it and which is obvious from the documents in the file before the Court of Justice.

33 It follows that the first ground of appeal must be rejected as manifestly unfounded.

The fourth and fifth grounds of appeal

– Arguments of the parties

34 By their fourth and fifth grounds, which should be examined together and second, the appellants claim that the General Court erred in law in so far as it held to be decisive the fact that the requests at issue were inseparable from the contractual framework and also in so far as it applied, with regard to a triangular relationship, criteria developed concerning bilateral relationships.

35 The Commission contends that those grounds of appeal are unfounded.

– Findings of the Court

36 By those two grounds, the appellants are essentially seeking to show that the General Court erred in law in finding that the requests at issue did not have, in relation to the appellants, the characteristics of a challengeable act for the purposes of Article 263 TFEU.

37 It is the Court’s settled case-law that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action for annulment (see, inter alia, order of 14 May 2012 in Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, unpublished, EU:C:2012:292, paragraph 51 and the case-law cited therein).

38 Thus, an action for annulment is available against all acts adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see, inter alia, order of 31 March 2011 in Mauerhofer v Commission, C‑433/10 P, unpublished, EU:C:2011:204, paragraph 57 and the case-law cited therein).

39 However, the interpretation and application of the FEU Treaty in compliance with the law, which may be ensured in practice by means of actions for annulment, does not apply where the applicant’s legal position falls within the contractual relationships whose legal status is governed by the national law agreed to by the contracting parties. Were the EU judicature to hold that it had jurisdiction to adjudicate on the annulment of acts falling within purely contractual relationships, not only would it risk rendering Article 272 TFEU — which grants the Courts of the European Union jurisdiction pursuant to an arbitration clause — meaningless, but would also risk, where the contract does not contain such a clause, extending its jurisdiction beyond the limits laid down by Article 274 TFEU, which specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the European Union is a party (see, to that effect, judgment of 9 September 2015 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 18 and 19 and the case-law cited therein).

40 Mr Borde and Carbonium SAS have not demonstrated how the General Court failed to apply correctly the principles developed in the case-law cited in paragraphs 37 to 39 above.

41 The General Court observed in paragraph 26 of the order under appeal that, having regard to the absence of any contractual link between Mr Borde and Carbonium SAS, on the one hand, and the Commission, on the other, it was open to the former parties to bring an action for annulment against the requests at issue provided those measures constituted challengeable acts with respect to them.

42 In paragraphs 31 to 33 of the order under appeal, the General Court examined the requests at issue in this connection. From that examination, it concluded that all of the effects of the requests were produced and exhausted within the framework of the contractual relationship between the Commission and the other contracting party, in relation to which Mr Borde and Carbonium SAS were third parties.

43 In the light of all those factors, it must be held that the General Court was fully entitled to hold, in paragraph 35 of the order under appeal, that the requests at issue could not be the subject of an action for annulment under Article 263 TFEU (see, by analogy, order of 31 March 2011 in Mauerhofer v Commission, C‑433/10 P, unpublished, EU:C:2011:204, paragraph 63).

44 It is also necessary to reject the argument submitted by Mr Borde and Carbonium SAS in support of their fifth ground of appeal, according to which the General Court incorrectly applied, with regard to a triangular relationship, criteria developed in the Court of Justice’s case-law concerning bilateral relationships.

45 The factual circumstances which gave rise to the order of 31 March 2011 in Mauerhofer v Commission (C‑433/10 P, unpublished, EU:C:2011:204) called into question contracts concluded between the Commission and a consortium, and between that consortium and experts. Therefore, the inferences drawn from that order are also applicable in respect of multilateral relationships.

46 The fourth and fifth grounds must therefore be rejected as manifestly unfounded.

The second and third grounds of appeal

– Arguments of the parties

47 By their second and third grounds, the appellants claim, first, that the General Court incorrectly restricted challengeable acts to acts defined under Article 288 TFEU whereas it should have found that the requests at issue constituted acts for the purposes of that latter provision.

48 The Commission contends that those grounds are unfounded.

– Findings of the Court

49 The second and third grounds are based on the premise that the requests at issue constitute acts against which an action for annulment may be brought in accordance with Article 263 TFEU.

50 As is apparent from paragraph 43 of the present order, the Tribunal was fully entitled to hold that the requests at issue did not constitute such acts. Both those grounds are therefore ineffective.

51 Therefore, the grounds in question must be dismissed as manifestly unfounded.

The sixth ground of appeal

– Arguments of the parties

52 By their sixth ground, the appellants submit that the General Court infringed their right to an effective judicial remedy.

53 The Commission contends that that ground is unfounded.

– Findings of the Court

54 Although the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation nevertheless cannot have the effect of setting aside those conditions (judgment of 21 January 2016 in SACBO v Commission and INEA, C‑281/14 P, EU:C:2016:46, paragraph 46 and the case-law cited therein).

55 The appellants’ right to an effective judicial remedy in order to obtain compensation for the harm which they claim to have suffered is ensured by the possibility, first, of referring the matter to an arbitrator under Belgian law, in accordance with the provisions of the contract concluded between NCG and Mr Borde, and, secondly, of bringing an action for damages as provided for under Article 268 TFEU, which is an autonomous form of action and whose exercise is subject to conditions imposed in view of its specific objective, which are therefore different to those for an action for annulment (see, to that effect, judgment of 21 January 2016 in SACBO v Commission and INEA, C‑281/14 P, EU:C:2016:46, paragraph 47 and the case-law cited therein).

56 Consequently, the sixth ground must be rejected as manifestly unfounded.

57 Accordingly, the appeal in its entirety must be dismissed as manifestly unfounded.

Costs

58 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs against Mr Borde and Carbonium SAS and the latter have been unsuccessful in their grounds of appeal, they must be ordered, jointly and severally, to pay the costs.

On those grounds, the Court (Seventh Chamber) hereby orders:

1. The appeal is dismissed.

2. Mr Borde and Carbonium SAS shall pay the costs jointly and severally.

[Signatures]