JUDGMENT OF THE GENERAL COURT (Second Chamber)

24 October 2014 ( *1 )

‛Arbitration clause — Programme of Community action in the field of public health — Contract for the funding of a project — Action for annulment — Debit note — Contractual nature of the dispute — Act not amenable to review — Inadmissibility — Reclassification of the action — Eligible costs’

In Case T‑29/11,

Technische Universität Dresden, established in Dresden (Germany), represented by G. Brüggen, lawyer,

applicant,

v

European Commission, represented initially by W. Bogensberger and D. Calciu, and subsequently by W. Bogensberger and F. Moro, acting as Agents, assisted by R. Van der Hout and A. Köhler, lawyers,

defendant,

APPLICATION for annulment of debit note No 3241011712, issued by the Commission on 4 November 2010, for the reimbursement of the sum of EUR 55 377.62 paid to the applicant in the context of financial assistance in support of a project conducted under the programme of Community action in the field of public health (2003-2008),

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro, President, S. Gervasoni (Rapporteur) and L. Madise, Judges,

Registrar: J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 24 June 2014,

gives the following

Judgment

Background to the dispute

1 The applicant, Technische Universität Dresden, is a higher education institution governed by public law.

2 On 21 April 2004, the applicant entered into an agreement, reference number 2003114 (SI2.377438) (‘the grant agreement’) with the Commission of the European Communities, acting on behalf of the European Community, for the financing of a project named ‘Collection of European Data on Lifestyle Health Determinants — Coordinating Party (LiS)’ (‘the project’) carried out under the programme of Community action in the field of public health (2003-2008). The duration of the project was 24 months, from 15 April 2004 to 15 April 2006.

3 The grant agreement provided for the applicant to be awarded grants of 60% of the estimated total eligible cost of the project, up to a ceiling of EUR 327 150.

4 Under the first paragraph of Article I.8 of the grant agreement, the grant was to be governed by the terms of the agreement, the Community rules applicable and, on a subsidiary basis, by the law of Belgium relating to grants. In addition, under the second paragraph of Article I.8 of the grant agreement, beneficiaries had the ability to bring legal proceedings before the General Court and, in the event of appeal, to the Court of Justice, regarding decisions by the Commission concerning the application of the provisions of the said agreement and the arrangements for implementing it.

5 Between 14 May 2004 and 13 December 2006, the Commission made three payments in favour of the applicant totalling EUR 326 555.84. This amount was equal to 60% of the total declared cost of the project, being EUR 544 259.73.

6 On 16 and 17 July 2007, the applicant underwent a financial audit.

7 The Commission sent the audit report to the applicant in a letter of 11 January 2008. That report referred to ineligible costs amounting to EUR 90 829.47. That figure was the sum of personnel costs (EUR 46 125.66), miscellaneous costs (EUR 12 918.45), administration costs (EUR 3 030.83) and reserve for unexpected costs (EUR 24 341.17), to which were added indirect costs also considered ineligible (EUR 4 413.36). It did not include travel expenses, although the explanations in the report commented that some travel expenses connected with a meeting organised in Cyprus in September 2005, amounting to EUR 638.04, were ineligible.

8 Following the audit report recommendations, the Commission asked the applicant, in its letter of 11 January 2008, to repay the sum of EUR 54 497.68, which corresponded to the difference between the financial assistance paid on the basis of the total cost declared by the applicant, and the maximum financial contribution which, following the audit, was fixed at EUR 272 058.16. The Commission invited the applicant to present its observations on those findings.

9 By a letter of 20 February 2008, the applicant agreed to pay back EUR 24 763.13, disputed certain findings in the audit report and supplied certain documents to the Commission intended to show that some of the costs considered ineligible in the said report were in fact eligible.

10 By a pre-information letter of 18 February 2009 (‘the pre-information letter’), the Commission, having assessed the observations and documents supplied by the applicant, increased the ineligible total to EUR 92 296.04. In the annex to that letter, the Commission specified that that amount consisted of personnel costs (EUR 44 156.76), travel and subsistence costs (EUR 3 083.65) and miscellaneous costs (EUR 13 270.27), bringing the total repayable to EUR 55 377.62.

11 By letters of 13 and 31 March 2009, the applicant disputed those findings and supplied additional documents. It agreed to repay only EUR 27 309.29.

12 By a debit note No 3241011712 of 4 November 2010 (‘the debit note’), communicated to the applicant by mail dated 11 November 2010, the Commission claimed repayment from the applicant of EUR 55 377.62, to be paid before 20 December 2010. The applicant received this communication on 15 November 2010.

Procedure and forms of order sought

13 By application lodged at the Registry of the General Court on 14 January 2011, the applicant brought the present action.

14 By separate document lodged at the Registry of the General Court on 31 March 2011, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court. The applicant submitted its observations on the objection of inadmissibility within the prescribed time-limit.

15 Following the partial renewal of the General Court, the case was allocated to a new Judge-Rapporteur. That Judge-RapportEUR was subsequently assigned to the Second Chamber, to which this case was accordingly allocated.

16 By order of the General Court of 20 November 2013, consideration of the objection of inadmissibility was reserved for the final judgment and the costs were reserved.

17 Pursuant to Article 47(1) of its Rules of Procedure, the General Court decided that a second exchange of pleadings was unnecessary because the documents before the court were sufficiently comprehensive to enable the parties to elaborate their pleas and arguments in the course of the oral procedure.

18 On hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure in the present case and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, requested the parties to produce certain documents. The parties complied with that request within the prescribed period.

19 The parties presented oral argument and answered the questions put by the General Court at the hearing on 24 June 2014.

20 The applicant claims that the Court should: — annul the debit note; — dismiss the objection of inadmissibility raised by the Commission and, in the alternative, reclassify this action as a contractual action under Article 272 TFEU; — order the Commission to pay the costs.

21 The Commission contends that the Court should: — dismiss the action as inadmissible; — in the alternative, dismiss the action as unfounded; — order the applicant to pay the costs.

22 At the hearing, in response to a question raised by the General Court, the applicant specified that in the event of the action being reclassified as an action based on Article 272 TFEU, its claim should be interpreted, in essence, as an application for the General Court to declare as eligible EUR 48 971.84 of the costs wrongly held by the Commission to be ineligible, so that the Commission’s claim in relation to those costs would be unfounded.

Law

Jurisdiction of the General Court and admissibility of the action

23 The Commission pleads inadmissibility of the action for annulment on the grounds that, in essence, the debit note does not constitute a challengeable act for the purposes of Article 263 TFEU. It contends that the debit note firstly forms part of a purely contractual relationship, from which it is inseparable, and, secondly, constitutes an act preparatory to a potential enforcement procedure and the adoption of a decision for the purposes of Article 299 TFEU.

24 By way of preliminary observation, it should be noted that it is for the applicant to choose the legal basis of its action and not for the European Union judicature itself to choose the most appropriate legal basis (judgment of 15 March in Spain v Eurojust, C‑160/03, EU:C:2005:168, paragraph 35, and order of 12 October 2011 in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, T‑353/10, ECR, EU:T:2011:589, paragraph 18).

25 In the present case, the applicant brought its claim for annulment on the basis of Article 263 TFEU. First, the applicant expressly seeks the annulment of the debit note. Secondly, Article 263 TFEU is referred to several times in both the application initiating proceedings and in the applicant’s observations on the objection of inadmissibility raised by the Commission.

26 None the less, in its observations on the objection of inadmissibility and during the hearing, the applicant added that, in the event of the General Court finding the action for annulment to be inadmissible, that action could be reclassified as one based on Article 272 TFEU which the General Court had jurisdiction to hear by virtue of the arbitration clause at Article I.8 of the grant agreement.

27 The Commission objects to a reclassification, maintaining that the General Court has no jurisdiction to hear an action brought by the applicant on the basis of Article 272 TFEU since Article I.8 of the grant agreement should not be classed as an arbitration clause.

28 In these circumstances it is necessary to examine, first, the admissibility of the present action in relation to the provisions of Article 263 TFEU and secondly and if necessary, whether, in the event that the application for annulment is found to be inadmissible, that application can still be reclassified as an action based on Article 272 TFEU.

Admissibility of the action in relation to the provisions of Article 263 TFEU

29 According to case-law, measures adopted by the institutions in a purely contractual context from which they are inseparable are, by their very nature, not among the measures annulment of which may be sought pursuant to Article 263 TFEU (see judgment of 17 June 2010 in CEVA v Commission, T‑428/07 and T‑455/07, ECR, EU:T:2010:240, paragraph 52 and the case-law cited).

30 It is apparent from the file that the debit note falls within the context of the grant agreement entered into by the Commission and the applicant and that its object is the enforcement of a debt based on the terms of that agreement.

31 First, it is not disputed that the sum of EUR 326 555.84 was paid by the Commission to the applicant under the grant agreement. Secondly, neither is it disputed that the Commission, as it was entitled to do under Article II.19 of that agreement, conducted a financial audit of the applicant in relation to the project, as a result of which it considered some of the declared costs to be ineligible. Thirdly, under Article II.18.1 of the said agreement, the Commission is entitled to demand repayment from the applicant of any sum which is unduly paid or the recovery of which is justified under that agreement, which it did by requiring the applicant, via the sending of the debit note, to repay to the Commission the sum of EUR 55 377.62. The debit note expressly refers to both the grant agreement and the pre-information letter and specifies that the claim for repayment follows the abovementioned audit.

32 The inseparable nature of the debit note from the contractual context is not affected by the applicant’s arguments.

33 The applicant considers that its relationship with the Commission should not be considered as a purely contractual relationship, given that the Commission acted as a public authority towards it, namely by issuing a debit note referring to an interest-bearing debt and endorsed with a recovery order and that the applicant itself is described in the grant agreement as a ‘beneficiary’. During the hearing, the applicant added that, by publishing the debit note, the Commission had gone beyond the contractual context and relied on exorbitant rights.

34 Those arguments cannot be accepted.

35 First, relations between the applicant and the Commission are governed by the grant agreement and the Commission expressly reserved, in the debit note, the possibility of issuing an enforceable decision within the meaning of Article 299 TFEU at a later date. Therefore, as set out in paragraphs 30 and 31 above, the Commission, in issuing the debit note, merely relied on its rights arising from the terms of the agreement allowing it to claim repayment from the applicant of unduly paid sums. Nothing on the file leads to the conclusion that, by taking that step, the Commission acted as a public authority towards the applicant.

36 Next, the description of the applicant as ‘beneficiary’ of the grant does not prove that the relationship between it and the Commission was not a contractual one and that the debit note was issued by the Commission acting as a public authority, beyond the contractual context. In fact, as is clear from the first page of the grant agreement, that description is simply a matter of drafting convention. It is provided there that the agreement is entered into between the Commission, acting on behalf of the Community, the applicant, ‘hereinafter called the main beneficiary’, and the associated beneficiaries, collectively referred to with the applicant as ‘the beneficiaries’, although it is made clear that this agreement has been concluded between the applicant only and the Commission.

37 Finally, even though the applicant seeks to maintain that the Commission adopted the debit note in the exercise of its prerogatives of public power, in order to rely on case-law stating that an act adopted by an institution within a contractual framework must be regarded as severable from that framework if it was adopted by that institution in the exercise of its prerogatives as a public authority (see Order in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission EU:T:2011:589, paragraph 28 and the case-law cited), those arguments cannot be accepted. In fact there is nothing on the file that leads to the conclusion that the Commission acted using its prerogatives as a public authority. In particular, as pointed out in paragraphs 30 and 31 above, the sole object of the debit note was to assert the Commission’s rights arising from the terms of the grant agreement, so that it cannot be claimed that it was adopted in the exercise of prerogatives of public authority.

38 In view of the above, it must be held that the debit note is not among the measures annulment of which may be sought from the European Union judicatures pursuant to Article 263 TFEU and there is no need to examine whether the said debit note constitutes only a preparatory act, as the Commission maintains.

39 Consequently, the present action is, in relation to the provisions of Article 263 TFEU, inadmissible.

Claim for reclassification of the present action as an action based on Article 272 TFEU

40 The applicant considers, none the less, that the present action can be reclassified as an action based on Article 272 TFEU, which the General Court has jurisdiction to hear pursuant to the arbitration clause contained at Article I.8 of the grant agreement.

41 The Commission’s response is that the General Court should not reclassify the present action as an action brought on the basis of Article 272 TFEU, since the grant agreement does not contain an arbitration clause. The Commission considers, in essence, that the second paragraph of Article I.8 of the grant agreement is merely a reminder that the General Court has jurisdiction to hear actions for annulment. According to the Commission, that article refers only to actions by the ‘beneficiaries’ and not the contracting parties, a theory confirmed by Article II.18.5 of the grant agreement.

42 First, in relation to a potential reclassification of this action as an action brought on the basis of Article 272 TFEU, it should be recalled that, according to settled case-law, when an action for annulment or an action for damages is brought before the Court when the dispute is, in point of fact, contractual in nature, the Court reclassifies the action, provided that the conditions for such a reclassification are satisfied (judgment of 19 September 2001 in LecurEUR v Commission, T‑26/00, ECR, EU:T:2001:222, paragraph 38; order of 10 May 2004 in Musée Grévin v Commission, T‑314/03 and T‑378/03, ECR, EU:T:2004:139, paragraph 88; and judgment in CEVA v Commission, paragraph 29 above, EU:T:2010:240, paragraph 57).

43 On the other hand, when faced with a dispute which is contractual in nature, the General Court considers itself unable to reclassify an action for annulment either where the applicant’s express intention not to base his application on Article 272 TFEU precludes such a reclassification or where the action is not based on any plea alleging infringement of the rules governing the contractual relationship in question, whether they be contractual clauses or provisions of the national law designated in the contract (see judgment in CEVA v Commission, paragraph 29 above, EU:T:2010:240, paragraph 59 and the case-law cited).

44 It follows that reclassification of the action is possible to the extent that the express intention of the applicant does not preclude it and that at least one plea alleging infringement of the rules governing the contractual relationship in question is put forward in the application pursuant to the provisions of Article 44(1)(c) of the Rules of Procedure. These two criteria are cumulative.

45 In the present case, in its observations on the Commission’s objection of inadmissibility, the applicant expressly asks for the present action to be reclassified as an action brought on the basis of Article 272 TFEU.

46 The applicant also puts forward two pleas in support of its action, the first alleging ‘breach of EU law by reason of an erroneous or inexistent assessment of the facts’ and the second alleging breach of the obligation to state reasons.

47 Even though the second plea is founded exclusively on considerations of administrative law and is characteristic of an action for annulment (see, to that effect, Order in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, paragraph 24 above, EU:T:2011:589, paragraphs 36 and 37), it should nevertheless be noted that, by its first plea, the applicant is essentially disputing the ineligibility for European Union financing of personnel costs, travel and subsistence costs and miscellaneous services costs which it considers it incurred for the purposes of carrying out the project. Eligibility of costs is defined in Article II.14 of the grant agreement, a term to which the applicant drew attention in its account of the facts made in its application. Therefore, even though the applicant does not refer explicitly to Article II.14 in its first plea, the arguments raised in support of that plea can only be understood as, in essence, challenging the assessments made by the Commission in relation to the said term. Moreover, in response to a question raised by the General Court at the hearing, the Commission did not dispute that, by that plea, the applicant was alleging a breach of the Commission’s contractual obligations.

48 In these circumstances, in accordance with the case-law referred to at paragraphs 42 and 43 above, the present action should be reclassified as an action based on Article 272 TFEU.

49 Secondly, however, it should recalled that the General Court does not have jurisdiction to rule at first instance on disputes of a contractual nature brought before it by natural or legal persons unless this is pursuant to an arbitration clause. In the absence of such a clause, the Court would be extending its jurisdiction beyond the limits placed on it (Orders of 3 October 1997 in Mutual Aid Administration Services v Commission, T‑186/96, ECR, EU:T:1997:149, paragraph 47, and of 8 February 2010 in Alisei v Commission, T‑481/08, ECR, EU:T:2010:32, paragraph 58).

50 The jurisdiction of the European Union judicature, under an arbitration clause, to hear a case concerning a contract is to be assessed solely in the light of the provisions of Article 272 TFEU and the terms of the clause itself (judgment of 8 April 1992 in Commission v Feilhauer, C‑209/90, ECR, EU:C:1992:172, paragraph 13). That jurisdiction derogates from the ordinary rules of law and must therefore be given a restrictive interpretation (judgment of 18 December 1986 in Commission v Zoubek, 426/85, ECR, EU:C:1986:501, paragraph 11). Thus, the General Court can adjudicate on a contractual dispute only if the parties have expressed their will to confer that jurisdiction on the Court (see judgment of 16 September 2013, GL2006 Europe v Commission, T‑435/09, ECR (extracts), EU:T:2013:439, paragraph 38 and the case-law cited; see also, to that effect, Order in Mutual Aid Administration Services v Commission, paragraph 49 above, EU:T:1997:149, paragraph 46).

51 Therefore, the General Court should only hear the present case, as reclassified in paragraph 48 above, to the extent that the grant agreement contains an arbitration clause giving it jurisdiction in that regard. Therefore, it is necessary to examine whether the said agreement contains such a clause.

52 In this respect, it should be recalled that, according to the case-law, as the Treaty does not lay down any particular wording to be used in an arbitration clause, any wording which indicates that the parties intend to remove any dispute between them from the purview of the national courts and to submit them to the European Union courts must be regarded as sufficient to give the latter jurisdiction under Article 272 TFEU (judgment of 17 March 2005, Commission v AMI Semiconductor Belgium and Others, C‑294/02, ECR, EU:C:2005:172, paragraph 50).

53 In the present case, the grant agreement contains Article I.8, entitled ‘Law applicable and competent court’. Under the second paragraph of that article, ‘the beneficiaries may bring legal proceedings regarding decisions by the Commission concerning the application of the provisions of the said agreement and arrangements for implementing it, before the [General Court] and, in the event of appeal, the [Court of Justice]’.

54 It follows that the second paragraph of Article I.8 of the grant agreement appoints the General Court as the court with jurisdiction at first instance for any proceedings brought by a beneficiary within the meaning of the grant agreement (‘the beneficiary’) (see paragraph 36 above) against decisions of the Commission concerning the application of the provisions of the said agreement and arrangements for implementing it.

55 It is true that, in view of the wording, the use of the terms ‘beneficiaries’ and ‘decisions by the Commission’ and the non-mutual nature of the second paragraph of Article I.8 of the grant agreement, which does not give the General Court any jurisdiction to hear proceedings brought in the context of the said agreement by the Commission, the drafting of that clause differs from that of standard arbitration clauses and could, as the Commission acknowledged during the hearing, lead to confusion since it evokes the review of legality via an action for annulment instituted in Article 263 TFEU.

56 Nevertheless, however regrettable the ambiguity thus generated by the non-standard drafting of the clause at the second paragraph of Article I.8 of the grant agreement, it must be held that, contrary to the Commission’s claims, it is not such as to prevent the clause from being categorised as an arbitration clause.

57 In that respect, it should first be pointed out that the heading of Article I.8 of the grant agreement, namely ‘Law applicable and competent court’ immediately indicates that the object of the clause contained at its second paragraph is to appoint the competent court to rule on disputes relating to the said agreement.

58 Thus, in providing that the beneficiaries may bring legal proceedings at first instance regarding decisions by the Commission concerning the application of the provisions of the said agreement and arrangements for implementing it before the General Court, the second paragraph of Article I.8 of the grant agreement invests the General Court with jurisdiction to hear actions brought by the beneficiaries in the context of disputes connected with that agreement, pursuant to Article 272 TFEU.

59 Next, it should be noted that, pursuant to the second paragraph of Article I.8 of the grant agreement, the actions that may be brought at first instance before the General Court by the beneficiaries are those regarding decisions by the Commission concerning the application of the grant agreement and arrangements for implementing it, as is clear from the wording of that provision.

60 This therefore covers decisions taken by the Commission on the basis of the provisions of the agreement and which are inseparable from the contractual relationship, such as the debit note at issue in the present case.

61 It follows that, contrary to the Commission’s case, the clause contained in the second paragraph of Article I.8 of the grant agreement should not be considered as merely a reminder that the General Court has jurisdiction to hear actions for annulment brought under Article 263 TFEU.

62 Aside from the fact that that clause makes no mention of Article 263 TFEU, it is clear from the case-law that measures adopted by the institutions in a purely contractual context from which they are inseparable are, by their very nature, not among the measures annulment of which may be sought pursuant to Article 263 TFEU.

63 Since, as shown in paragraphs 59 and 60 above, the clause contained in the second paragraph of Article I.8 of the grant agreement covers exactly the actions that can be brought against decisions or measures such as those referred to in paragraph 62 above, the interpretation proposed by the Commission that the second paragraph of Article I.8 of the grant agreement is merely a reminder about actions for annulment brought under Article 263 TFEU would entail an extension, via contractual means, of the conditions governing the admissibility of actions for annulment enshrined in Article 263 TFEU and interpreted by case-law, while those conditions are a matter of public policy (see order of 15 April 2010 in Makhteshim-Agan Holding and Others v Commission, C‑517/08 P, EU:C:2010:190, paragraph 54 and the case-law cited, and order of 15 December 2010 in Albertini and Others v Parliament, T‑219/09 and T‑326/09, ECR, EU:T:2010:519, paragraph 56 and the case-law cited) and are not, therefore, at the discretion of the parties.

64 Contrary to the arguments presented by the Commission at the hearing, it must be held that, in view of the matters set out in paragraphs 59 and 60 above, it would be contrary to the letter of the clause contained in the second paragraph of Article I.8 of the grant agreement to hold that the scope of that clause is limited to actions against decisions that may be taken by the Commission on the basis of Article 299 TFEU.

65 In that respect, it is important to add that the decisions that may be taken under Article 299 TFEU are specifically referred to in Article II.18.5 of the grant agreement, cited by the Commission. That provision informs the beneficiaries that any sums unduly paid may be recovered on the basis of an enforceable decision under Article 299 TFEU and that an action against such decision may be brought before the General Court. Aside from the fact that the said Article II.18.5 of the grant agreement makes no mention of the second paragraph of Article I.8 of that agreement, it should be noted that the Commission failed to explain how Article II.18.5 of the grant agreement could confirm its restrictive reading of the second paragraph of Article I.8 of the said agreement. On the contrary, the existence of that specific clause, at Article II.18.5 of that agreement, relating to enforceable measures, confirms a contrario that the concept of ‘decisions … concerning the application of the provisions of the contract’ appearing in the second paragraph of Article I.8 of the same contract does not refer to such enforceable measures capable of being separated from the contractual relationship.

66 Finally, with regard to the terminology employed in the second paragraph of Article I.8 of the grant agreement and, more particularly, the terms ‘decision’ and ‘beneficiary’, together with the unilateral nature of the clause contained in that article, it should be recalled that, as is clear from the case-law cited at paragraph 52 above, any wording which indicates that the parties intend to remove any dispute between them from the purview of the national courts and to submit them to the European Union courts must be regarded as sufficient to give the latter jurisdiction under Article 272 TFEU. Therefore, despite the arguments raised by the Commission in that respect, the drafting of the second paragraph of Article I.8 of the grant agreement does not prevent it from being classed as an arbitration clause.

67 In view of all the matters above, it must be held, firstly, that the present action should be reclassified as an action brought on the basis of Article 272 TFEU and, secondly, that the General Court has jurisdiction to rule on that action pursuant to Article 272 TFEU and the arbitration clause contained in the second paragraph of Article I.8 of the grant agreement.

Merits of the action

68 In support of its action, as reclassified, the applicant raises two pleas in law, the first in essence alleging an erroneous assessment of the facts contrary to the terms of the grant agreement, and the second alleging a breach of the obligation to state reasons.

First plea in law, alleging an erroneous assessment of the facts contrary to the terms of the grant agreement

69 In the context of the first plea, the applicant complains that the Commission found certain costs, amounting to EUR 48 971.84, to be ineligible. These are, first, personnel costs in the sum of EUR 44 156.76, secondly, subsistence and travel costs in the sum of EUR 638.04 and EUR 1 354.08 respectively and, thirdly, miscellaneous costs in the sum of EUR 2 822.96.

70 The Commission contests the merits of this plea. It considers, in particular, that it was entitled to demand repayment from the applicant of the sum of EUR 55 490.39.

– Preliminary remarks

71 By way of preliminary remark, it should be recalled that, according to a fundamental principle of European Union financial aid, the Union can subsidise only expenses which have actually been incurred. Accordingly, in order for the Union to be able to carry out checks, the beneficiaries of such aid must show that the costs attributed to subsidised projects are genuine, as the provision by those beneficiaries of reliable information is indispensable for the successful operation of the system of control and evidence established in order to check whether the conditions for the grant of aid are satisfied. It is not sufficient, therefore, to show that a project has been carried out for the allocation of a specific subsidy to be justified. The beneficiary of the aid must, in addition, produce evidence that he has incurred the expenses declared in accordance with the conditions laid down for the grant of the aid concerned, with only those expenses which are properly justified being capable of being regarded as eligible. His obligation to satisfy the prescribed financial commitments is even one of his essential commitments and accordingly determines the allocation of European Union financial aid (judgment of 22 May 2007 in Commission v IIC, T‑500/04, ECR, EU:T:2007:146, paragraph 94; see, to that effect and by analogy, judgments of 19 January 2006 in Comunità Montana della Valnerina v Commission, C‑240/03 P, ECR, EU:C:2006:44, paragraphs 69, 76, 78, 86 and 97).

72 Since the grant of aid was, as is seen in the first paragraph of Article I.8 of the grant agreement, to be governed by the terms of the agreement, the Community rules applicable and, on a subsidiary basis, by the law of Belgium relating to grants, it is important to note that the principle recalled in paragraph 71 above is reflected in the terms of that contract relating to the arrangements for the grant of the aid. It is thus apparent, in particular from Articles I.4.2 to I.4.5, I.5 and II.15.2 to II.15.4 of the said agreement, that the applicant must supply the Commission, at various stages of the project, with statements of the eligible costs actually incurred, and that the Commission can, if applicable, require further information and documents to be supplied. It is on the basis of the documents referred to in Article II.15.4 of the grant agreement, in particular the final financial statement of the eligible costs actually incurred, that the Commission determines the final amount of the grant, in accordance with Article II.17 of that agreement and subject to information received at a later stage in the context of a financial audit carried out under Article II.19 of the same contract.

73 In that context, it should also be noted that, in relation to the criteria determining the eligibility of costs, Article II.14.1 of the grant agreement stipulates as follows: ‘To be considered as eligible costs of the action, costs must satisfy the following general criteria: — they must be connected with the subject of the agreement and they must be provided for in the estimated budget annexed to it; — they must be necessary for performance of the action covered by the agreement; — they must be reasonable and justified and they must accord with the principles of sound financial management, in particular in terms of value for money and cost-effectiveness; — they must be generated during the lifetime of the action as specified in Article I.2.2 of the agreement; — they must be actually incurred by the beneficiaries, be recorded in their accounts in accordance with the applicable accounting principles, and be declared in accordance with the requirements of the applicable tax and social legislation; — they must be identifiable and verifiable. The beneficiaries’ internal accounting and auditing procedures must permit direct reconciliation of the costs and revenue declared in respect of the action with the corresponding accounting statements and supporting documents.’

74 In addition, Article II.14.2 of the grant agreement defines eligible direct costs in the following way: ‘The eligible direct costs for the action are those costs which, with due regard for the conditions of eligibility set out in Article II.14.1, are identifiable as specific costs directly linked to performance of the action and which can therefore be booked to it direct. In particular, the following direct costs are eligible provided that they satisfy the criteria set out in the previous paragraph: — the cost of staff assigned to the action, comprising actual salaries plus social security charges and other statutory costs included in the remuneration, provided that this does not exceed the average rates corresponding to the beneficiaries’ usual policy on remuneration; — travel and subsistence allowances for staff taking part in the action, provided that they are in line with the beneficiaries’ usual practices on travel costs or do not exceed the scales approved annually by the Commission; …’

75 It is appropriate to consider the merits of the first plea in the light of these considerations.

– Personnel costs

76 The applicant’s arguments in relation to personnel costs concern, first, Mr C.S. and Mr J.S. (EUR 44 100) and, secondly, Ms H. (EUR 56.76).

77 Turning first to the personnel costs for Mr C.S. and Mr J.S., the applicant claims that the Commission was wrong to find these ineligible. In essence, the applicant considers that it has proven the participation of these members of staff in the project by providing details of their publications, overviews of their work, supplements to the Final Technical Implementation Report and contributions to presentations, which it supplied to the Commission following the audit report and also annexed to its application.

78 The Commission contests the merits of the applicant’s arguments.

79 It must be stated that neither the arguments raised by the applicant nor the documents it has produced are such as to establish the participation of Mr C.S. and Mr J.S. in the project.

80 First, all the publications by Mr C.S. and Mr J.S. supplied by the applicant date from 2008. Although, according to Article I.1.4 of the grant agreement, the project ran from 15 April 2004 to 15 April 2006, and, under Article II.14.1 of that agreement, eligible costs had to be generated during the lifetime of the project, the applicant has failed to prove that the preparatory work for those publications was carried out during the course of the project. In addition, it is not apparent from those publications, as the applicant claims, that their publication was delayed due to the peer review system for authors’ contributions. Indeed, the first publication expressly states that it was submitted for publication on 8 February 2008, accepted on 10 April 2008 and published on 6 May in the same year. As for the other publications by the same authors, annexed to the application, it should be noted that nothing in them indicates the date of submission for publication, and the only mention of the date of publication, 2008, is insufficient to show that the said publications were prepared during the lifetime of the project.

81 Secondly, as the Commission rightly asserts, the overviews of the work of Mr C.S. and Mr J.S. are dated 8 February 2008, after the end of the project. Even though the applicant considers that it was justified in supplying new evidence after the end of the project given that the audit report had found proof of participation of the said members of staff to be insufficient, it is not, contrary to the applicant’s case, justifiable to establish this evidence a posteriori, two years after the project end date. What is more, those overviews of work merely consist of a list of the publications referred to in paragraph 80 above, while adding that Mr C.S. and Mr J.S. participated in the project as experts. Aside from the fact that, as stated in paragraph 80 above, it has not been shown that these publications were prepared during the course of the project, that list and the reference to the involvement of Mr C.S. and Mr J.S. as experts do not suffice, owing to their generality and to the absence of any specific mention of the way in which those persons participated in the project or any concrete evidence of their participation.

82 Thirdly, the supplements to the Final Technical Implementation Report were signed on 24 and 25 March 2009 respectively. In essence, these documents merely provide the three following pieces of information. First, Mr C.S. and Mr J.S. were said to be involved in the project as experts, as it would be ‘obviously impossible’ to conduct a large EU project, such as the project, without an expert with scientific expertise in internal medicine and pharmacotherapy, as well as pharmacy, pharmacology and clinical nutrition. Next, Mr C.S. and Mr J.S. were said to be involved in the preparation of work, in particular the publications referred to above. Finally, Mr C.S. and Mr J.S. provided advice during discussions. In connection with the latter two matters, those documents refer to various pages of the Interim Technical Implementation Report and the Final Technical Implementation Report.

83 For the reasons set out in paragraph 81 above, this general information supplied after conclusion of the project is insufficient to establish the effective participation of Mr C.S. and Mr J.S. in the said project. In addition, although these supplemental documents refer to the two reports mentioned in paragraph 82, it must be stated that those reports do not appear in the file for the present case, so that the General Court is not able to verify the validity of the applicant’s claims in that regard.

84 Fourthly, the documents supplied by the applicant in relation to ‘work supporting presentations’ carried out by Mr C.S. and Mr J.S. do not include any mention of those individuals and are not capable of proving their participation in the project.

85 Furthermore, as appears from the file, neither Mr C.S. nor Mr J.S. participated in the meeting that the applicant organised in September 2005 in Cyprus in the context of the project.

86 Consequently, since the applicant has failed to prove that Mr C.S. and Mr J.S. actually participated in the project, the personnel costs relating to them must be held to be ineligible.

87 In addition, since the objections and evidence submitted by the applicant in its letters of 13 and 31 March 2009 addressed to the Commission were repeated before the General Court and dismissed in paragraphs 80 to 84 above, the applicant’s argument that the Commission omitted to take those matters into consideration does not affect the ineligibility of the personnel costs relating to Mr C.S. and Mr J.S.

88 The applicant maintains secondly that, when calculating the total ineligible sum, the Commission omitted to exclude the personnel costs of EUR 56.76 in relation to Ms H. from the ineligible items.

89 The Commission’s response is that even if the personnel costs relating to Ms H. were considered eligible, an amount of EUR 2 025.67 none the less needed to be added to the total of non-eligible personnel costs and that since this amount, stated in the audit report, was not contested by the applicant, the total sum of EUR 44 156.76 fixed in the pre-information letter is not exhaustive.

90 In that respect, it must first be noted that the applicant and the Commission agree on the fact that the personnel costs of EUR 56.76 in relation to Ms H. are eligible.

91 Secondly, the Commission’s argument that the total sum of EUR 44 156.76 fixed in the pre-information letter is not exhaustive is irrelevant. Even supposing that the Commission had the right to claim repayment of a sum for personnel costs greater than that stated in the debit note, that would not affect the conclusion that the Commission erroneously found other costs ineligible, namely the personnel costs in relation to Ms H.

92 It is therefore necessary to uphold this complaint to the extent that it relates to the personnel costs in relation to Ms H. and reject the complaint as to the remainder.

– Subsistence and travel costs

93 The applicant disputes the ineligibility of subsistence costs in the sum of EUR 638.04 and travel costs in the sum of EUR 1 354.08.

94 First, the applicant considers that it has substantiated the subsistence costs of 20 participants in the meeting in Cyprus. Therefore, the Commission, which allegedly failed to take into account the information it supplied, was wrong to find that the subsistence costs of EUR 638.04 were not eligible. In this respect the applicant invokes several documents annexed to its application.

95 The Commission contests the merits of those arguments.

96 According to the audit report, the applicant declared a total amount of EUR 9 598.04 for subsistence costs. The Commission found, on the basis of air travel documentation, that 14 people had spent, overall, 56 days in Cyprus. Multiplying that number of days by the daily rate for Cyprus (EUR 160), the Commission found only EUR 8 960 to be eligible. Therefore, the Commission found, both in the audit report and the pre-information letter, that the difference between those amounts (EUR 638.04) was ineligible.

97 According to the fifth indent of Article II.14.1 of the grant agreement, costs must, inter alia, be actually incurred by the beneficiary in order to be eligible.

98 First, the list of participants registered at the meeting in Cyprus, which mentions the names of 20 people, is not sufficient either to establish that all those people actually participated in the meeting or, in particular, to establish that their subsistence costs were actually borne by the applicant. This conclusion is all the more relevant given that, as the Commission points out, on the copy of the list supplied by the applicant there is a manuscript annotation stating that four people did not submit a travel expenses claim. In addition, in its application, the applicant states that ‘the subsistence costs for this meeting also include persons who did not attend’.

99 Secondly, in relation to the two other documents supplied by the applicant to justify its incurring costs for booking a meeting room and the hotel costs of Professor K., amounting respectively to EUR 1 010 and EUR 1 843.96, it must be stated that, as maintained by the Commission, this is not sufficient to establish the number of actual participants at the meeting in Cyprus. In addition, it does not appear from the applicant’s arguments that the applicant is now asking for the meeting room costs or hotel costs to be taken into account under eligible costs.

100 The applicant has therefore not supplied any information enabling the subsistence costs of EUR 638.04 to be established as eligible. In the circumstances, the claim that the Commission failed to take account of the observations and evidence supplied by the applicant to this effect in its letter of 31 March 2009 must be dismissed for the same reasons as those set out in paragraph 87 above.

101 Secondly, the applicant considers that it has established the eligibility of travel costs in the sum of EUR 1 354.08 by supplying the boarding cards of four members of staff.

102 In this respect, it is sufficient to state that it is clear from the Commission’s documents that the Commission acknowledges the eligibility of travel costs in the sum of EUR 1 354.08, as it expressly confirmed in response to a question asked by the General Court at the hearing.

103 This complaint must therefore be upheld in so far as it relates to the travel costs and dismissed as to the remainder.

– Miscellaneous costs

104 In relation to the miscellaneous service costs, the applicant claims first that the printing costs of the article ‘Public Health responses to extreme weather conditions’ were funded by the World Health Organisation (WHO) only up to EUR 3 522.86, as can be seen from the statement of account supplied by the applicant, so that the remaining sum of EUR 2 471.14 is eligible. It claims also that the Commission’s calculation of ineligible costs was erroneous since the amount initially fixed at EUR 12 918.45 in the audit report was raised to EUR 13 270.27 in the pre-information letter, with no explanation for this increase.

105 The Commission’s response is that EUR 12 918.45 of miscellaneous service costs are ineligible, including the EUR 2 471.14 that the applicant considers to be eligible, since that amount is impossible to understand and insufficiently proven.

106 Turning first to the difference between the ineligible amounts of miscellaneous costs stated in the audit report (EUR 12 918.45) and in the pre-information letter (EUR 13 270.27), it should be recalled that the Commission, in its defence, bases its arguments on an ineligible total amount for the said costs of EUR 12 918.45. Accordingly, the Commission admits, as it also confirmed in response to a question put by the General Court during the hearing, that the difference between the two amounts, being EUR 351.82, is eligible.

107 Therefore, it is necessary to uphold the argument raised by the applicant in this respect and to declare the eligibility of EUR 351.82 for miscellaneous service costs.

108 Secondly, in relation to the printing costs for the ‘Public Health responses’ article, it must be noted that the information contained in the file for the present case, that is, the agreement reached by the applicant with the WHO to undertake work in connection with the said article and a statement of account evidencing receipt by the applicant of EUR 3 522.86, are not capable of establishing the eligibility of the sum of EUR 2 471.14.

109 Those documents merely show that, under the agreement reached by the applicant with the WHO to undertake work in connection with the article, the applicant was to write the ‘Public Health responses’ article and submit it to the European Journal of Public Health, and that it received the sum of EUR 3 522.86 from the WHO. The documents do not, however, establish either the way in which the sum was used or that the remaining EUR 2 471.14 of costs were actually incurred by the applicant.

110 Under Article II.14.1 of the grant agreement, in order to be eligible, costs must not only be actually incurred by the beneficiary but also, as the Commission rightly submits, be identifiable and verifiable.

111 In addition, under the same provision, in order to be eligible, costs must be connected with the subject of the grant agreement. It is not apparent from the documents supplied by the applicant that writing the ‘Public Health responses’ article fell within the project financed by the said agreement.

112 Accordingly, in relation to the miscellaneous costs, it is necessary to find an amount of EUR 351.82 eligible and to dismiss the applicant’s complaint as to the remainder.

113 Taking the above matters into account, it must be held that, in the context of the first plea in law, the applicant has established the eligibility of a total amount of EUR 1 762.66, being the sum of the personnel costs for Ms H. (EUR 56.76), some of the travel costs (EUR 1 354.08) and some of the miscellaneous costs (EUR 351.82).

114 This finding is not affected by the Commission’s argument that it had the right to demand repayment from the applicant of a total amount of EUR 55 490.39, in other words, a higher figure than that claimed in the debit note.

115 That argument is ineffective for the same reasons as those set out in paragraph 91 above.

116 In addition, even supposing that, by that argument the Commission sought to bring a counterclaim before the General Court and, despite the wording of the arbitration clause, the General Court had jurisdiction to hear that counterclaim, in view of case-law stating that, in the European Union system of legal remedies, the jurisdiction to hear the main action implies the existence of a jurisdiction to hear any counterclaim made in the course of the procedure which is derived from the same act or circumstance that is the subject of the application (see order of 27 May 2004 in Commission v IAMA Consulting, C‑517/03, EU:C:2004:326, paragraph 17 and the case-law cited), that counterclaim would in any event be inadmissible due to the requirements of Article 46(1)(c) of the Rules of Procedure. Such a claim is not made out with the required clarity either in the Commission’s documents or in the observations presented by the Commission at the hearing and is not substantiated by arguments or evidence enabling the General Court to assess its merits or the applicant to prepare its defence.

117 Bearing in mind all the above matters, it is necessary to partially uphold the first plea in law in so far as it aims to establish the eligibility of the personnel costs of Ms H. (EUR 56.76), some of the travel costs (EUR 1 354.08) and some of the miscellaneous costs (EUR 351.82) and to dismiss it as to the remainder.

Second plea in law, alleging a breach of the obligation to state reasons

118 In its second plea in law, the applicant claims that the debit note is vitiated by a failure to state reasons.

119 The Commission contests the merits of this plea.

120 The obligation to state reasons which the applicant claims has been infringed is imposed on the Commission by virtue of the second paragraph of Article 296 TFEU. It applies, however, only to unilateral means of action by the Commission. It does not, therefore, apply to the Commission by virtue of the grant agreement (see, to that effect, judgment of 25 May 2004 in Distilleria Palma v Commission, T‑154/01, ECR, EU:T:2004:154, paragraph 46).

121 Therefore, the plea alleging a failure to state reasons is ineffective in the context of an action brought on the basis of Article 272 TFEU, since any potential breach of that obligation would have no bearing on the obligations imposed on the Commission by virtue of the agreement at issue (see, to that effect, judgment of 3 June 2009 in Commission v Burie Onderzoek en Advies, T‑179/06, EU:T:2009:171, paragraphs 117 and 118, and judgment of 11 December 2013 in EMA v Commission, T‑116/11, ECR, EU:T:2013:634, under appeal, paragraph 275).

122 This conclusion is not invalidated by the applicant’s argument that, according to case-law, since a decision reducing the amount of European Union financial assistance has serious consequences for the recipient of the assistance, that decision must clearly show the grounds which justify the reduction in the assistance initially authorised (judgment of 17 September 2003 in Stadtsportverband Neuss v Commission, T‑137/01, ECR, EU:T:2003:232, paragraph 53). In fact, that case-law is not relevant to the present case since, in contrast to this case, the financial assistance at issue in the judgment in Stadsportverband Neuss v Commission (EU:T:2003:232) had not been granted under an agreement but by virtue of a decision taken by the Commission in response to a request made by the Stadtsportverband Neuss eV and was heard by the General Court, in that case, under an action for annulment of the Commission’s decision to order partial repayment of the said financial assistance.

123 Accordingly, the second plea in law raised by the applicant must be rejected as ineffective.

124 In view of all the above matters, the action must be partially upheld in so far as it seeks a finding of eligibility in relation to the personnel costs of Ms H. (EUR 56.76), some of the travel costs (EUR 1 354.08) and some of the miscellaneous costs (EUR 351.82) and dismissed as to the remainder.

Costs

125 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleading.

126 In the present case, the applicant asked at the hearing for the Commission to bear the entire costs, in any event and even if the action were dismissed, since the ambiguous wording of the second paragraph of Article I.8 of the grant agreement had misled the applicant as to the means of legal challenge available to it.

127 None the less, it should be recalled that the applicant had initially based its action on the provisions of Article 263 TFEU and that it was only in response to the objection of inadmissibility raised by the Commission that it sought to rely on the second paragraph of Article I.8 of the grant agreement in asking the General Court to reclassify the action as an action based on Article 272 TFEU. Accordingly, the ambiguous wording of the clause, however regrettable it may be, was not in any way the reason for bringing an action based initially on the provisions of Article 263 TFEU. Moreover, the said clause did not prevent the reclassification of that action as an action based on Article 272 TFEU or the assessment by the General Court of its merits.

128 In the circumstances, since the applicant has been unsuccessful in the essential aspects of its case, it must be ordered, pursuant to Article 87(2) of the Rules of Procedure, to pay the costs of this case, as sought by the Commission.

On those grounds, THE GENERAL COURT (Second Chamber) hereby:

1. Declares that the personnel costs relating to Ms H., amounting to EUR 56.76, travel costs amounting to EUR 1 354.08, and miscellaneous costs amounting to EUR 351.82 incurred by Technische Universität Dresden in performing Contract No 203114 (SI2.377438) concerning the funding of the project ‘Collection of European Data on Lifestyle Health Determinants — Coordinating Party (LiS)’ conducted under the programme of Community action in the field of public health (2003-2008) are eligible and, consequently, dismisses the European Commission’s claim regarding those amounts, set out in Debit Note No 3241011712 of 4 November 2010, as unfounded;

2. Dismisses the action as to the remainder;

3. Orders Technische Universität Dresden to pay the costs.

Martins Ribeiro Gervasoni Madise Delivered in open court in Luxembourg on 24 October 2014. [Signatures]

( *1 ) Language of the case: German.