Judgment of the General Court (Eighth Chamber) of 21 September 2017 — Eurofast v Commission

(Case T‑87/16)

(Financial assistance — Seventh Framework Programme for research, technological development and demonstration activities — ASSET Convention — Decision to recover by offsetting certain sums paid following a financial audit — Action for annulment — Legitimate expectations — Arbitration clause — Deadline for providing the audit report — Adversarial principle — Eligibility of costs — Contractual liability)

1. Actions for annulment—Action directed against a decision to recover by extrajudicial offsetting sums paid in the context of a grant agreement—Decision open to challenge on the basis of Article 263 TFEU or Article 272 TFEU—Admissibility—Pleas relating to contractual stipulations and the applicable national law—Inadmissibility (Arts 263 TFEU and 272 TFEU) (see paras 40, 41, 57)

2. EU budget—Financial regulation—Recovery of debts due to the Union from third parties—Requirement that the debt is certain, of a fixed amount and due—Condition satisfying the expiry of the period fixed in the debt note (European Parliament and Council Regulation No 966/2012, Arts 78(1) and 80; Commission Regulation No 1268/2012, Art. 87(1)) (see paras 58, 59)

3. EU budget—Financial regulation—Recovery of debts due to the Union from third parties—Procedure of recovery by offsetting—Contesting of the debt by the debtor—No impact on the possibility to use that procedure (European Parliament and Council Regulation No 966/2012, Art. 80(1)) (see paras 64, 65)

4. EU budget—Financial regulation—Recovery of debts due to the Union from third parties—Procedure of recovery by offsetting—Requirement for the competent authorising officer to at the outset issue an order for recovery to the accounting officer of the institution concerned and a debit note to the debtor—Obligation of the accounting officer to proceed with recovery in the event of default by the debtor (European Parliament and Council Regulation No 966/2012, Art. 80(1)) (see paras 66-68)

5. EU law—Principles—Protection of legitimate expectations—Conditions—Specific assurances given by the authorities (see paras 83, 85, 86, 89, 91)

6. EU law—Principles—Legal certainty—EU rules—Requirements of clarity and foreseeability (see paras 95, 97, 98)

7. Judicial proceedings—General Court seised under an arbitration clause—Jurisdiction of the General Court to hear a counterclaim for payment—Basis (Arts 256(1) TFEU and 272 TFEU) (see para. 109)

8. Judicial proceedings—Application initiating proceedings—Formal requirements—Clear and precise statement of the pleas relied on (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 76d)) (see para. 124)

Re:

On the one hand, application based on Article 263 TFEU for annulment of Commission Decision of 17 December 2015 to proceed to recovery by offsetting, in accordance with the findings of a financial audit, certain sums advanced to the applicant under Grant Agreement No 211625 in respect of the ASSET project, concluded in the framework of the Seventh Framework Programme for research, technological development and demonstration activities, and, on the other hand, application based on Article 272 TFEU for a declaration that that debt does not exist, that the expenditure incurred under Grant Agreement No 211625 in respect of the ASSET project is eligible and to order the Commission to confirm that the funding granted is lawful, to order the Commission to pay a sum under Grant Agreement No 607049 in respect of the Eksistenz project and to pay contractual compensation.

Operative part

The Court:

1. Dismisses the action;

2. Orders Eurofast SARL to pay to the European Commission the sum of EUR 78 380.28, corresponding to the reimbursement of the financial contribution from which it benefitted under Grant Agreement No 211625 in respect of the project ‘Aeronautic Study on Seamless Transport’, plus late-payment interest at a rate of 3.55% from 13 January 2015, after deduction of the offset amount, namely EUR 69 923.68 as at 17 December 2015.