Judgment of the General Court (Fifth Chamber) of 2 February 2017 —

IMG v Commission

(Case T‑381/15)

(Protection of the European Union’s financial interests — Strengthened audit and monitoring measures and verification warning in the early warning system (EWS) — Decision suspending the possibility for the applicant to conclude contracts for indirect management with the Commission having regard to doubts regarding its status as an international organisation — Action for annulment — Act not open to challenge — No interest in bringing proceedings — Partial inadmissibility — Rights of the defence — Obligation to state reasons — Manifest error of assessment — Proportionality — Legal certainty — Legitimate expectations — Application for damages)

1. Actions for annulment—Actionable measures—Definition—Measures producing binding legal effects—Commission letter refusing the possibility of the applicant concluding with the Commission contracts for indirect management having regard to doubts existing as to its status as an international organisation—Included (Art. 263 TFEU; European Parliament and Council Regulation No 966/2012, Art 58(1)(c)(ii)) (see paras 41, 44, 45)

2. Actions for annulment—Action against a decision refusing to withdraw or amend an earlier act—Inadmissibility—Concept of confirmatory decision—Re-examination of the situation on the basis of facts and assessments appearing in a report of the European Anti-Fraud Office—Precluded (Art. 263 TFEU) (see paras 42, 49, 51)

3. Actions for annulment—Action relating in reality to a contractual dispute—Annulment of the Commission’s demand ordering a contractor to carry out strengthened audit and monitoring measures in the context of the performance of the contract—No jurisdiction of the EU judicature—Inadmissibility (Arts 263 TFEU, 272 TFEU and 288 TFEU; Commission Regulation No 2342/2002, Art. 35(3)) (see paras 58-61)

4. Actions for annulment—Interest in bringing proceedings—Interest to be assessed at the time at which an action is brought—Action brought against the introduction of a verification warning concerning the applicant in the early warning system for the use of authorising officers of the Commission and executive agencies—Withdrawal of the warning during the proceedings—No material or non-material damage justifying the applicant’s interest in obtaining annulment of the measure—No longer further interest in bringing proceedings (Art. 263 TFEU; Commission Decision 2008/969) (see paras 64, 65, 67, 70, 71)

5. Acts of the institutions—Statement of reasons—Obligation—Scope—Assessment of the duty to state reasons by reference to the circumstances of the case (Arts 263 TFEU and 296 TFEU) (see paras 82, 91)

6. EU law—Principles—Rights of defence—Right to be heard—Scope (Charter of Fundamental Rights of the European Union, Art. 41(1)) (see paras 112-114)

7. European Anti-Fraud Office (OLAF)—Regulation No 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF)—Rights of defence—Scope—Right of access to the inquiry file—None save where intended to adopt a measure adversely affecting the person concerned (European Parliament and Council Regulation No 883/2013) (see para. 118)

8. EU budget—Financial regulation—Implementation of the budget—Implementation by indirect management—Special procedure reserved for international organisations—Suspension by the Commission of the possibility of concluding indirect management contracts where doubts as to an entity’s status as an international organisation—Lawfulness (Art. 310(5) TFEU; European Parliament and Council Regulation No 966/2012, Arts 58(1)(c)(ii), and 60(2); Commission Regulation No 1268/2012, Art. 43(1)) (see paras 128, 134-136)

9. EU law—Principles—Legal certainty—Concept—Whether principle capable of being raised—Conditions—Legal situation called back into question on the strength of new circumstances—No infringement (see paras 145, 149)

10. EU law—Principles—Protection of legitimate expectations—Conditions—Specific assurances given by the authorities (see paras 156, 157)

11. Non-contractual liability—Conditions—Unlawfulness—Damage—Causal link—Cumulative conditions—No obligation on the court to examine in a given order—One of those conditions not met—Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see paras 164, 168)

12. Non-contractual liability—Conditions—Sufficiently serious breach of a rule of law intended to confer rights on individuals—Institution with a reduced or non-existent discretion—Mere infringement of EU law sufficient (Art. 340, second para., TFEU) (see para. 165)

13. Non-contractual liability—Conditions—Actual and certain damage—Burden of proof (Art. 340, second para., TFEU) (see para. 166)

14. Non-contractual liability—Conditions—Causal link—Concept—Burden of proof (Art. 340, second para., TFEU) (see para. 167)

15. Judicial proceedings—Measures of organisation of procedure—Application to remove from the file internal documents of an institution—Opinion of the legal service of an institution improperly obtained—Removal from the file (Rules of Procedure of the General Court, Art. 89; European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent) (see paras 176, 177, 179)

16. Judicial proceedings—Measures of organisation of procedure—Application to remove from the file internal documents of an institution—Final investigation report of the European Anti-Fraud Office improperly obtained—Non-communication of the report in breach of the applicable procedural rules—Retention on file (Rules of Procedure of the General Court, Art. 89; European Parliament and Council Regulation No 883/2013) (see paras 181-184)

Re:

First, application under Article 263 TFEU seeking annulment of the Commission’s letter in which that institution orders the strengthening of audit and monitoring measures and the issuing of a verification warning and refuses to allow the applicant to conclude contracts with the Commission for indirect management and, secondly, application under Article 268 TFEU seeking compensation in respect of the harm which the applicant allegedly suffered as a result of the adoption of the measures envisaged in that letter.

Operative part

The Court:

1. Declares that there is no longer any need to adjudicate on the action in so far as International Management Group (IMG) seeks the annulment of the registration of a verification warning with regard to it in the early warning system;

2. Dismisses the action as inadmissible or unfounded as to the remainder;