ORDER OF THE COURT (Eighth Chamber)

1 July 2009 ( )

(Appeal – Contract for Community financing of a research project – Arbitration clause – Action brought by a person not party to that contract – Lack of jurisdiction of the Court of First Instance)

In Case C‑29/09 P,

APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 18 January 2009,

Daniela Marinova, residing in Sofia (Bulgaria), represented by G. Georgiev, lawyer,

appellant,

the other parties to the proceedings being:

Université Libre de Bruxelles,

Commission of the European Communities,

defendants at first instance,

THE COURT (Eighth Chamber),

composed of T. von Danwitz, President of the Chamber, R. Silva de Lapuerta (Rapporteur) and E. Juhász, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By her appeal, Ms Marinova asks the Court to set aside the order of the Court of First Instance of the European Communities of 5 November 2008 in Cases T‑213/08 and T‑213/08 AJ Marinova v Université Libre de Bruxelles and Commission (‘the order under appeal’), by which the Court of First Instance dismissed her action in contractual liability brought on the basis of an arbitration clause contained in a contract for the Community financing of a research project (‘the financing contract’) concluded between the Commission of the European Communities and the Université Libre de Bruxelles (‘the ULB’).

Facts of the dispute

2 Within the framework of the specific technological research and development programme (Structuring ERA), action ‘Marie Curie Incoming International Fellowships’, the Commission, acting on behalf of the European Communities, concluded on 14 April 2007 with the ULB a contract for the financing of a research project entitled ‘Active Structures with Smart Materials: Modelling, Control, Numerical Simulation and Experimental Validation’ (Contract No 038950 (MEIF CT/2007 038950)).

3 Annex I to that contract designates Professor Preumont as the person in charge of the research project and Ms Marinova as a researcher.

4 The financing contract contains a clause conferring jurisdiction on the Community Courts to rule on any dispute arising between the Community and its contractual partner, namely the ULB, as regards the validity, performance or interpretation of that contract.

5 With a view to carrying out the above research project, the ULB concluded, on 31 August and 5 October 2007, two successive contracts of employment with Ms Marinova – the first for a period of three months and the second for a period of nine months (‘the contract of employment’).

6 By letter of 19 December 2007, Ms Marinova lodged a complaint with the Commission in respect of the content and performance of the contract of employment.

7 By letter to Ms Marinova of 11 February 2008, the Commission replied essentially that, according to the information which it had received from the ULB, Ms Marinova had the usual contract of employment with comprehensive social benefits. The Commission added that, when the research project in question came to an end, it would check that the ULB had paid Ms Marinova using the share of the Community financial contribution provided for under the financing contract for the work which she had performed. Lastly, with respect to further questions relating to the contract of employment, the Commission suggested to Ms Marinova that she contact the ULB directly.

8 A second complaint, dated 10 March 2008, was addressed by Ms Marinova to the Commission, which replied by letter of 14 April 2008.

The proceedings before the Court of First Instance and the order under appeal

9 By application lodged at the Registry of the Court of First Instance on 8 June 2008, Ms Marinova brought an action in contractual liability against the ULB and the Commission on the basis of the arbitration clause in the financing contract.

10 By a separate document lodged the same day, Ms Marinova applied for adjudication of the action under the expedited procedure.

11 By letter of 25 August 2008, she submitted an application for legal aid under Article 95 of the Rules of Procedure of the Court of First Instance.

12 On the basis of Article 111 of its Rules of Procedure, the Court of First Instance, by the order under appeal, dismissed the action brought by Ms Marinova.

13 By the order under appeal, pursuant to Article 94(3) of its Rules of Procedure, the Court of First Instance also dismissed the application for legal aid submitted by Ms Marinova.

14 The relevant paragraphs in the grounds of the order under appeal are the following:

‘13 It should be noted that the jurisdiction of the Court of First Instance is specified in Article 225 EC and Article 140a EA, as further refined in Article 51 of the Statute of the Court of Justice. Under those provisions, the Court of First Instance may adjudicate at first instance on contractual disputes only where these are brought before it on the basis of an arbitration clause. Otherwise, it would be exercising jurisdiction beyond the limits placed by Article 240 EC on the disputes of which it may take cognisance, since that article specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the Community is a party (order in Case T‑186/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1633, paragraph 47). Its jurisdiction to adjudicate on such contractual disputes represents a derogation from the ordinary rules of law and must therefore be given a restrictive interpretation (Case 426/85 Commission v Zoubek [1986] ECR 4057, paragraph 11).

14 The case-law has also recognised that only the parties to a contract containing an arbitration clause may be parties to an action brought on the basis of Article 238 EC (order of 8 January 2008 in Case T-245/04 Commission v Lior and Others …, paragraph 112; see also, to that effect, Case 23/76 Pellegrini v Commission [and Flexon Italia] [1976] ECR 1807, paragraph 31).

15 In the present case, the … financing contract … contains an arbitration clause conferring jurisdiction on the Community Courts to take cognisance of disputes relating to the validity, performance or interpretation of that contract.

16 That arbitration clause therefore applies only to the contractual relations between the parties to that contract, namely the Commission and the ULB. In particular, the fact that – as observed by the applicant – [the financing contract] requires the ULB to comply with a certain number of specific obligations in relation to the applicant in her capacity as a researcher for the project in question does not affect the fact that, in that context, the [Commission is contractually linked only to the ULB].

17 It follows, first of all, that the arbitration clause contained in [the financing contract] cannot properly be relied upon by the applicant in an action in contractual liability against the Commission. Accordingly, the Court of First Instance manifestly lacks jurisdiction to take cognisance of the present action in so far as it was brought against the Commission.

18 Nor, secondly, can the applicant rely on that arbitration clause in a dispute with the ULB, to which she is bound by the contract of employment. The contract of employment, which was concluded with the applicant in performance of [the abovementioned financing contract], was not concluded by the Community or on its behalf, but by the ULB. In consequence, it could not contain an arbitration clause conferring jurisdiction on the Court of First Instance pursuant to Article 238 EC; nor does it contain such a clause.

19 It follows from the foregoing considerations that the Court of First Instance manifestly lacks jurisdiction to take cognisance of the present action both in so far as that action was brought against the Commission and in so far as it was brought against the ULB. The action must therefore be dismissed in its entirety.’

The appeal

15 In her appeal, Ms Marinova claims that the order under appeal should be set aside and that the form of order sought by her at first instance should be granted in full.

Concerning the appeal

16 Under Article 119 of the Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal in whole or in part.

17 According to settled case-law, it follows from Article 225 EC, from the first paragraph of Article 58 of the Statute of the Court of Justice and from Article 112(1)(c) of the Court’s Rules of Procedure that an appeal must indicate precisely the contested elements of the order or judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal (see Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34; Case C‑41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 15; and Case C-355/04 P Segi and Others v Council [2007] ECR I-1657, paragraph 22).

18 Ms Marinova’s appeal, however, fails to meet those requirements.

19 In her appeal, Ms Marinova does no more than comment on each paragraph of the order under appeal, without setting out a coherent legal argument designed specifically to identify the errors of law allegedly vitiating those paragraphs.

20 An appeal having such characteristics cannot be the subject of a legal assessment which would allow the Court to exercise its function in the area under examination and to carry out its review of legality (see order of 29 November 2007 in Case C‑107/07 P Weber v Commission, paragraph 28, and order of 10 February 2009 in Case C‑290/08 P Carlos Correia de Matos v Commission, paragraph 21).

21 In any event, even if one were to suppose that the appeal could be construed as meaning that Ms Marinova’s complaint is that the Court of First Instance failed to determine whether the non-contractual liability of the Community had been incurred in the present case, suffice it to state that that allegation was raised for the first time at the appeal stage and that it therefore constitutes, under Article 42(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, a new plea in law which must be declared inadmissible inasmuch as it is not based on matters of law or of fact which came to light in the course of the procedure.

22 In those circumstances, the appeal must be dismissed as being clearly inadmissible.

Costs

23 In accordance with Article 69 of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, Ms Marinova must bear her own costs.

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

1. The appeal is dismissed.

2. Ms Marinova shall bear her own costs.

[Signatures]