Judgment of the General Court (Second Chamber) of 14 November 2017 — Alfamicro v Commission

(Case T‑831/14)

(Arbitration clause — Grant agreement concluded under the Competitiveness and Innovation Framework Programme (CIP) (2007-2013) — Audit report — Eligible costs — Reimbursement of amounts paid — Proportionality — Legitimate expectations — Legal certainty — Principle of good administration — Obligation to state reasons — Amendment of the form of order sought in the course of the proceedings — Set-off of claims — Counterclaim — Default interest)

1. Judicial proceedings—Legal basis of an action—Choice for the applicant and not the EU judicature (see para. 38)

2. Judicial proceedings—General Court seised under an arbitration clause—Jurisdiction of the General Court—Review of the legality of administrative acts against which an action for annulment may be brought—Not included (Arts 263 TFEU and 272 TFEU) (see para. 40)

3. Actions for annulment—Actionable measures—Meaning—Measures producing binding legal effects—Action relating in reality to a contractual dispute—Annulment of a debit note issued by the Commission—No jurisdiction of the EU judicature—Inadmissibility (Arts 263 TFEU and 272 TFEU) (see paras 41-45)

4. EU budget—EU financial assistance—Obligation on the beneficiary to comply with the conditions for grant of the assistance—Justification of costs incurred (Art. 317 TFEU) (see paras 83, 145, 146)

5. Judicial proceedings—General Court seised under an arbitration clause—Contracts concluded under a specific programme established in the context of the general competitiveness and innovation programme—Reimbursement of sums paid due to financial irregularities on the part of the contractor—Action for non-contractual liability—Invocation of the principle of proportionality—Lawfulness—Obligation to perform the contract in good faith (Art. 5(4) TEU; Art. 272 TFEU) (see paras 137, 138)

6. Judicial proceedings—General Court seised under an arbitration clause—Pleas in law—Breach of the principles of legitimate expectations and legal certainty—Invalid plea in law—Rejection (Art. 272 TFEU) (see paras 155-157)

7. Judicial proceedings—General Court seised under an arbitration clause—Pleas in law—Infringement of the principle of sound administration—Invalid plea in law—Rejection (Art. 272 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1)) (see paras 165-167)

8. Judicial proceedings—General Court seised under an arbitration clause—Pleas in law—Lack of or inadequate statement of reasons—Invalid plea in law—Rejection (Arts 272 TFEU and 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c)) (see paras 175-177)

9. Judicial proceedings—General Court seised under an arbitration clause—Challenge to the validity of a set-off decision—Decision for extra-judicial set-off between debts and claims adopted by the Commission on the basis of Regulation No 966/2012—Measure falling within EU law—Measure open to an annulment action—Inadmissibility (Arts 263 TFEU and 272 TFEU; European Parliament and Council Regulation No 966/2012) (see paras 190-196)

10. Judicial proceedings—Subject-matter of the dispute—Alteration once proceedings have been started—Alteration, of the forms of order sought in the action, brought following the adoption of a decision by the defendant institution—Alteration concerning the nature of the action—Not permissible (Arts 263 TFEU and 272 TFEU; Rules of Procedure of the General Court, Art. 48(2)) (see paras 198-202)

Re:

First, application based on Article 272 TFEU and seeking, in essence, a declaration that the debt claimed by the Commission against the applicant under Grant Agreement No 238882 on the EU financing of the ‘Save Energy’ project, concluded under the Competitiveness and Innovation Framework Programme (2007-2013) established by Decision No 1639/2006/EC of the European Parliament and of the Council of 24 October 2006 (OJ 2006 L 310, p. 15) is non-existent, and, secondly, counterclaim seeking, in essence, an order that the applicant repay the subsidy wrongly paid under that grant agreement.

Operative part

The Court:

1. Dismisses the action brought by Alfamicro — Sistemas de computadores, Sociedade Unipessoal, Lda;

2. Orders Alfamicro — Sistemas de computadores, Sociedade Unipessoal to pay to the European Commission the sum of EUR 277849.93, increased by default interest at the rate of EUR 26.88 per day with effect from 20 June 2015;