OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 6 November 2014 ( 1 )

Case C‑564/13 P

Planet AE Anonimi Etairia Parokhis Simvouleftikon Ipiresion

v

European Commission

‛Appeals — Article 272 TFEU — Arbitration clause — Action for a declaratory judgment — Interest in bringing proceedings’

I – Introduction

1. The present appeal against an order of the General Court ( 2 ) (‘the order under appeal’) raises, in essence, procedural questions of great significance in practice.

2. At its core, this appeal concerns whether and, if so, subject to what conditions, an action for a declaratory judgment may be brought before the Courts of the Union when those courts have jurisdiction in respect of legal disputes between the European Commission and a private undertaking pursuant to an arbitration clause as provided for in Article 272 TFEU.

II – Background to the dispute and the order under appeal

3. The appellant, a Greek undertaking, Planet AE Anonimi Etairia Parokhis Simvouleftikon Ipiresion (‘Planet’ or ‘the appellant’), received various payments from the European Commission as part of the implementation of three projects (Ontology enabled E-Gov Service Configuration [ONTOGOV], Fostering self-adaptive e-government service improvement using semantic technologies [FIT] and Risk Assessment for Customs in Western Balkans [RACWeb]).

4. The projects were managed and the payments made on the basis of contracts between Planet and the Commission. It was the parties’ expressed intention that the contracts be governed by Belgian law. Under the contracts, the Commission was required to cover certain eligible costs incurred by the appellant on production of corresponding evidence. Express provision was made in the contracts for the Commission to conduct a subsequent review to determine whether the payments it had made were in fact used to cover eligible costs.

5. Under the arbitration clauses concerned, the Courts of the Union were to have jurisdiction in respect of legal disputes concerning the validity, implementation or interpretation of those contracts.

6. In 2008, the projects having been completed, and as had been provided contractually, the Commission engaged an external firm of auditors to verify whether the costs reported by Planet were in fact eligible and, accordingly, whether, from the Commission’s point of view, the payments had been made on a sound legal basis. In the course of that audit, it proved doubtful from the auditor’s point of view whether all the payments had been made on a sound legal basis. In particular, the criticism was made that Planet’s managerial personnel (considerable costs were charged) played a significant part in the projects. Nor, even after an exchange of views lasting several years, until May 2012, between Planet and the Commission service with responsibility for external audits, could an agreement be reached with regard to the eligibility of a total of EUR 547 653.42 (‘the disputed costs’). ( 3 )

7. Although the Commission continued to indicate its readiness to discuss the matter out of court, ( 4 ) and had not yet approached Planet with a request for payment, in November 2012 Planet brought an action before the General Court seeking a declaration that, by disallowing the disputed costs, the Commission was in breach of contract, and, furthermore, that the disputed costs were eligible and did not have to be repaid to the Commission. ( 5 ) It based its action on Article 272 TFEU and Article 340 TFEU.

8. The Commission raised an objection of inadmissibility against that action.

9. The order under appeal followed, in essence, the arguments advanced by the Commission and dismissed Planet’s action as inadmissible. The General Court held that, so long as the Commission had not yet approached Planet with a request for payment, the question whether Planet had in fact incurred any losses was hypothetical. It found that the latter therefore lacked a sufficient vested current interest in bringing proceedings. ( 6 )

III – Appeal

10. The appellant challenges the order under appeal, submitting essentially that an interest in obtaining a declaration exists even before a specific request for payment is made by the Commission. The latter had repeatedly disregarded the arguments advanced by Planet relating to the disputed costs. It has not as yet been made clear whether Planet may permanently retain the disputed payments. The consequent uncertainty specifically and currently affects its financial position. Its appeal seeking a declaration of a contractual right is therefore admissible. ( 7 )

11. By contrast, the Commission takes the view that the order under appeal contains no errors of law and contends that the Court should dismiss the appeal.

IV – Legal assessment

12. The present case leads the Court into terra incognita. Two points must be clarified: first, whether an action for a declaratory judgment may be brought in the first place in the context of Article 272 TFEU and, second, if the first question is answered in the affirmative, whether in circumstances such as those of the present case the appellant may be considered to have a sufficient interest in bringing proceedings. When those two points are examined, the question of what law it must be in the light of which the availability of, and the conditions for the admissibility of, an action for a declaratory judgment are assessed will be decisive.

A – Classification of the claim made at first instance as an application for a declaration

13. As a preliminary point, it must be made clear whether Planet’s claim for legal protection is to be classified as an action for a declaratory judgment.

14. The reason for asking this question is, inter alia, that in its heads of claim at first instance Planet based its request that the General Court should ‘declare that … [the] personnel costs for the … high ranking staff … are … eligible costs and do not have to be repaid … to the Commission’, not only on Article 272 TFEU but also on the first paragraph of Article 340 TFEU, ( 8 ) which suggested prima facie that its claim should be classified as a claim for damages and was, therefore, to be treated as an action for performance.

15. In this regard, the Commission took the view that the purpose of the claim was ultimately that Planet should be permitted to retain the payments received, and thus an outcome was sought that is normally obtained by means of an action for performance. In its view, Planet’s claim was therefore to be classified as an action for performance.

16. That argument is however unconvincing, if only because Planet’s claim, if the heads of claim are given a reasonable interpretation, which the Union judicature is required to give, ( 9 ) seeks to obtain, not performance by the Commission, but rather a judicial declaration that payments already made were made on a sound legal basis. Planet does not request that the Commission should either take action or refrain from acting, but rather, as the Commission itself acknowledges, ultimately seeks a judicial declaration that it may keep the payments made by the Commission. The object of the case is therefore a judicial assessment of the legal relationships existing between the parties, in the light of the question whether or not any right to repayment for the Commission arises from those relations. Thus, Planet seeks a declaration that there exists no right to repayment.

17. Such an action is not to be regarded as an action for performance but rather as an action for a (negative) declaratory judgment, the availability of which and the conditions for admissibility of which must be examined below in the context of Article 272 TFEU.

B – Availability of an action for a declaratory judgment within the context of Article 272 TFEU

18. The appeal can succeed only if, within the context of Article 272 TFEU, legal recourse to the Courts of the Union is in fact available by means of a claim seeking a declaration. It is therefore necessary to begin by clarifying this issue.

1. Article 272 TFEU as a rule of jurisdiction sui generis

19. Neither Article 272 TFEU nor the procedural rules applicable to the Courts of the Union lay down an exhaustive list of those categories of action that could possibly be legal remedies under an arbitration clause. The fact that the availability of an action for a declaratory judgment is not laid down as a matter of positive law cannot therefore in itself mean that such an action would generally be precluded.

20. It is the reverse that is true: if Article 272 TFEU leaves the parties free to bring their legal disputes before the Courts of the Union for judgment to be given, those courts must also, in principle, have jurisdiction in relation to all claims submitted in the context of such disputes, including any claims seeking a declaration. ( 10 ) The inclusion of such claims follows from the principle of effective legal protection, laid down in Article 47 of the Charter of Fundamental Rights.

21. Thus, in the case-law (especially in that of the General Court), decisions can be found in which applications for a declaration pursuant to arbitration clauses were not dismissed as inadmissible but were considered on the merits, without the issue of the availability of an action for a declaratory judgment being not explicitly addressed. ( 11 )

22. The fact that, outside the ambit of Article 272 TFEU, the Courts of the Union have rejected claims for a declaration, inasmuch as such an application ‘does not fall within any of the categories of action which the Court has jurisdiction to hear’, ( 12 ) is not contradictory in this regard. This is because, whereas, for example, the TFEU lays down exhaustive provisions governing the possible categories of action in connection with the relationship between the institutions and the Member States, ( 13 ) the TFEU is quite specifically silent on the issue of arbitration clauses. Article 272 TFEU is in fact an open provision which makes recourse to the Courts of the Union available by virtue of arbitration clauses agreed between private individuals in connection with contracts ‘governed by public or private law’, the content of which is not further specified. In view of that fact, and not as in the context of the institutional law of the European Union, it is impossible to predict before the fact what manner of claims for legal protection might be brought before the Courts of the Union within the context of Article 272 TFEU. The one thing that is clear is that those courts, because they have ‘jurisdiction to give judgment pursuant to any arbitration clause’ under Article 272 TFEU, must guarantee the parties comprehensive, effective legal protection. If, in a given case, a claim seeking a declaration is involved, the Courts of the Union must be required to rule on that claim too, and may not in the context of Article 272 TFEU declare that they do not have jurisdiction, taking refuge behind the fact that actions for a declaratory judgment have no basis in positive law (or the fact that such actions are not available in other areas of EU law).

23. None the less, no clarification has as yet been provided of the question whether the conditions for admissibility of actions for a declaratory judgment, available as a matter of principle, are to be assessed autonomously in the light of EU law, or whether it is the law applicable to the contract in question (generally national law) that is decisive.

2. Criteria governing the conditions for admissibility of an action for a declaratory judgment in the context of Article 272 TFEU

24. There are three reasons that support an autonomous solution in accordance with EU law.

a) Authoritative nature of the lex fori as regards the admissibility of a form of legal protection ( 14 )

25. First, the question of the categories of action available and the conditions for admissibility of such actions is, by its very nature, an intrinsic part of procedural law; accordingly, it is not a matter for the law chosen to govern the contract in question, but must rather be assessed in accordance with the rules (here: rules of EU law) applicable to the court before which the matter has been brought. Accordingly, in the case of Article 272 TFEU, EU law, as the lex fori, as it were, would have to be applied to the question of the availability of an action for a declaratory judgment and the conditions for the admissibility of such an action.

26. Leaving aside some rather unconvincing exceptions, ( 15 ) this approach also appears to be consistent with the debate in legal literature and the practice before national courts. The need of legal protection is regarded in the main as forming part of the right of access to justice, a right which cannot be dependent on the law applicable. Accordingly, the lex fori is decisive as regards the admissibility of a form of judicial protection such as an action for a declaratory judgment. ( 16 )

27. A question to be dealt with separately, however, is whether, in a particular case, on the basis of a pactum de non petendo agreed between private individuals, a party may be prevented from lodging an action that is in principle available, and what law it is in whose light the validity of such an agreement is to be assessed. In this connection, there are sound reasons supporting recourse, not to the lex fori, but to the lex causae applicable to the claim concerned. At all events, this question does not form part of the subject-matter of the present proceedings and may therefore be left unanswered.

b) Autonomy and uniform application of EU law

28. Second, the principles of autonomy and of the uniform application of EU law argue in favour of an autonomous solution in accordance with EU law.

29. Recourse to the law applicable to the contract to which the specific dispute relates would make a colourful patchwork quilt of the application of the law by the Courts of the Union: depending on the choice of law made by the parties, which could potentially also entail the application of the law of a non-member country, an action for a declaratory judgment would sometimes be admissible and sometimes inadmissible, and the procedure before the Courts of the Union on this important matter would be dependent on constantly fluctuating considerations of national law. Such a solution (ultimately based on the choice of law, which is at the discretion of the parties) could hardly be reconciled with the fundamental principle that the procedure of the Courts of the Union is not within the discretion of the parties. ( 17 )

30. In addition, if the question of admissibility were to be determined having regard to national law, this would give rise to problems of a practical nature in connection with the examination and assessment of how the law in question is applied. ( 18 ) Moreover, if that assessment conducted by the General Court were to be challenged by means of an appeal, this would entail delving into the depths of Article 58 of the Statute of the Court of Justice.

31. In accordance with that provision, only EU law is, in principle, open to a full review on appeal by the Court of Justice. Accordingly, if the question whether at first instance the General Court misapplied national law with regard to the conditions for admissibility of an action for a declaratory judgment were withdrawn from the comprehensive power of review enjoyed by the Court of Justice, ( 19 ) there would be a gap in the legal protection afforded that would be unacceptable from the perspective of the proper administration of justice. If, in the present case, the Court were to consider applying the national law of lex causae in relation to the conditions governing the admissibility of an action for a declaratory judgment, it would have to bear this issue in mind.

32. It is true that, contrary to the wording of Article 58 of the Statute, the Court has previously been prepared, specifically in connection with arbitration clauses, without, however, in that connection, expressly addressing the issue of the impossibility of an appeal under national law or resolving the resultant conflict with Edwin v OHIM, ( 20 ) to conduct a review on appeal of substantive provisions of national origin applicable to the contract. ( 21 ) The special status enjoyed by Article 272 TFEU within the framework of the rules governing jurisdiction contained in the TFEU and the requirement of effective legal protection may support that approach. However, that open approach must not be taken so far that, in addition to the choice of law applicable to the contract, the parties may also determine the procedural law of the Courts of the Union. The autonomous structure of that law and its uniform nature throughout the Union mean that it is wholly removed from the reach of private persons.

33. To give free rein to the principle of the autonomy of the parties by means of the choice of law, even for the procedure before the Courts of the Union in the context of arbitration clauses, would be to open Pandora’s box. Indeed, if it were to be accepted that the admissibility of an action is dependent on the choice of law made by the parties and thus ultimately on the will of the parties, it would be only logical also to accept that the will of the parties may be decisive in relation to all procedural matters in the procedure under Article 272 TFEU, for instance the composition of the bench or the specific course of the procedure. That would not be compatible with the requirements laid down in the Rules of Procedure of the Courts of the Union.

34. Finally, a further argument against recourse to national law is that, in the context of Article 272 TFEU, the parties are free not to make the substance of their legal dispute subject to the national law of a particular country, but may rather have recourse to rules of another kind. However, those rules may in fact provide no answer at all to the question of the conditions for admissibility of an action for a declaratory judgment if, like, for example, the United Nations Convention on Contracts for the International Sale of Goods or the Unidroit Principles of International Commercial Contracts, they concern in essence matters of substantive law only. Even in such cases, the Court must be able to assess the admissibility of an action for a declaratory judgment brought before it. If the situations in which the parties have chosen a national law as the lex causae and those in which they have not done so are to be assessed on the basis of uniform criteria with regard to the question of admissibility, there is therefore no other option than to examine those criteria on the basis of EU law.

c) Whether the EU law concept of an interest in bringing proceedings is appropriate for determining the conditions for the admissibility of an action for a declaratory judgment

35. Nor, third, is there any need whatsoever of a solution based on the lex causae in question.

36. The procedural law of the Union contains a comprehensive set of generally applicable principles that has been fleshed out by settled case-law; those principles may be applied mutatis mutandis to actions for a declaratory judgment. In that regard, the crux of the issues surrounding admissibility is the question of a party’s interest in bringing proceedings, failing which the action is inadmissible, whatever its type. This is also, in particular, true of an action for a declaratory judgment.

37. Consideration will have to be given below as to whether there can be held to be a sufficient interest in obtaining a declaration in the case of the action for a declaratory judgment brought by the appellant.

38. However, it may already be stated as an interim conclusion, first, that an action for a declaratory judgment in the context of Article 272 TFEU is available in principle and, secondly, that the conditions governing the admissibility of such an action are to be assessed in the light of the autonomous principles of EU law.

C – Does the appellant have an interest in bringing proceedings?

39. As the General Court correctly states, Planet would have to be considered to have no legal interest in bringing the action it initiated in November 2012 if, in the event of its action being upheld, it would not stand to obtain an appreciable advantage and, consequently, would lack an existing current interest in obtaining judicial protection. ( 22 ) It is for the appellant to plead and prove that such an interest exists. ( 23 )

40. There is no specific submission by Planet in its application at first instance regarding its alleged legal interest in bringing proceedings. The appeal too merely contains rather imprecise statements which essentially relate to the ‘uncertainty’ of the appellant’s financial position so long as it is unsure whether it may permanently retain the funds received by it. ( 24 ) However, Planet does not state to what extent it would specifically have stood to benefit if the legal position had been clarified for it as early as the initiation of its action, let alone that it would otherwise face serious legal or economic disadvantages, or the specific nature of such disadvantages. Nor did it advance any substantiated argument in this regard in response to a question put at the hearing, with the result that it is unnecessary to consider whether an argument to that effect advanced at the stage of the appeal ought to have been regarded as being out of time and ought not, therefore, to have been considered.

41. Therein lies the weakness of Planet’s claim seeking a declaration. Although an action for a declaratory judgment is, in principle, available in the context of Article 272 TFEU, EU law, specifically in a case such as the appellant’s, requires a substantiated argument to be advanced on the question why judicial protection is required even before a claim has been made by the Commission. This is because, whereas in the case of actions for performance intended to obtain satisfaction of specific claims the interest in bringing proceedings may be inferred automatically from the context of the applicant’s claim itself, an interest worthy of protection on the part of the applicant in an abstract judicial declaration that a legal relationship or a particular right does or does not exist usually requires specific reasoning. It is not for the Union judicature to issue abstract legal opinions.

42. There are indeed perfectly conceivable situations in which, from the perspective of effective legal protection, it must remain open to an applicant to obtain judicial clarification of a legal position by means of an action for a declaratory judgment even before a claim is made by the co-contractor.

43. It would be conceivable, for example, that, supposing that there existed a right to repayment, the undertaking’s management might be forced, even before a claim had been made by the creditor, to seek to have insolvency proceedings opened or to establish considerable reserves in the annual accounts, which could have a lasting adverse impact on that undertaking’s creditworthiness, economic value or prospects of winning public contracts.

44. Planet has made no submissions of that kind, choosing rather to make general statements. Such general statements do not, however, satisfy the requirement that it be demonstrated that the claim for judicial protection procures the appellant a specific current advantage.

45. This is a fortiori true because, in Planet’s case, recourse was had to justice not only before any specific request for payment had been made but even before the Commission procedure had been definitively closed, a procedure whose conduct was agreed under contract and in the course of which the Commission clearly remained willing to continue discussions. In those circumstances, there is no indication that, from a legal perspective, Planet was threatened with injustice already relevant to a declaration, even if an action for a declaratory judgment may perhaps, for example in the case of Commission proceedings protracted beyond reason, be justified by the fundamental right to sound administration even before the investigation procedure is concluded. ( 25 ) However, Planet has made no such specific submission. Its subjective impression that the arguments advanced by it out of court would fall on deaf ears at the Commission cannot on its own establish an interest in obtaining a declaration. More specifically, an action for a declaratory judgment must not be used for a purpose other than that for which it is intended, that is to say, as a means of exerting pressure in order to accelerate extrajudicial, contractually agreed procedures.

46. In the light of all the foregoing, the General Court was right to hold that Planet had no interest in bringing proceedings and therefore to dismiss its action as inadmissible.

47. The appeal must therefore be dismissed.

D – Costs

48. It is true that, since its appeal has therefore been unsuccessful in its entirety, the appellant should be ordered to pay the costs if they have been applied for in the successful party’s pleadings, pursuant to Article 184(1) and (2) in conjunction with Article 138(1) of the Rules of Procedure of the Court of Justice. However, since the Commission has made no such application for costs and the application for costs made by it before the General Court no longer has effect in relation to the appeal proceedings, each party must bear its own costs.

V – Conclusion

49. I therefore propose that the Court should: (1) dismiss the appeal; (2) order the appellant and the European Commission each to pay its own costs.

( 1 ) Original language: German.

( 2 ) Planet v Commission (T‑489/12, EU:T:2013:496).

( 3 ) Order under appeal, paragraphs 7 to 22.

( 4 ) Order under appeal, paragraphs 39 and 40.

( 5 ) Order under appeal, paragraphs 23 to 27; the form of order sought by the appellant at first instance reads literally: ‘declare that the European Commission, by disallowing personnel costs for the applicant’s high ranking staff, infringed the ONTOGOV, FIT and RACWeb contracts and that the personnel costs submitted to the Commission in respect of the abovementioned contracts for the applicant’s high ranking staff, amounting to EUR 547 653.42, are consequently eligible costs and ought not to be repaid by the applicant to the Commission’.

( 6 ) Order under appeal, paragraphs 44 to 50.

( 7 ) Appeal, paragraphs 14 to 16.

( 8 ) See paragraph 1 of the application.

( 9 ) See, to that effect, Verein Deutsche Sprache v Council (C‑93/11 P, EU:C:2011:429, paragraph 18).

( 10 ) Thus including the claim in question here, which relates to the implementation of the contracts at issue and is therefore covered by the arbitration clause mentioned in point 5.

( 11 ) See, for example, ELE.SI.A v Commission (T‑312/10, EU:T:2012:512, paragraph 58) and EMA v Commission (T‑116/11, EU:T:2013:634, paragraph 64).

( 12 ) Italy v Commission (C‑224/03, EU:C:2003:658, paragraph 21) which concerned a claim made by the Italian Republic seeking a declaration that the Commission is not competent in relation to certain measures; in relation to claims for a declaration relating to the law governing the civil service, see also Jaenicke Cendoya v Commission (108/88, EU:C:1989:325, paragraphs 8 and 9).

( 13 ) Italy v Commission (EU:C:2003:658, paragraph 21).

( 14 ) See, in this regard, Dasser, F., ‘Feststellungsinteresse in internationalen Verhältnissen’, Jusletter of 29 September 2003, paragraphs 16 to 18; this article can be viewed online at http://www.homburger.ch/fileadmin/publications/FESTSTLL.pdf.

( 15 ) For the alternative view of the Swiss courts based on the lex causae, a view which admittedly makes no reference to EU law, see the critical comment by Dasser (cited in footnote 14).

( 16 ) Shack, H., ‘Internationales Zivilverfahrensrecht’, 6th edition, Verlag C.H. Beck, Munich 2010, paragraph 591 with further references.

( 17 ) As regards the imperative nature of the time-limits for bringing proceedings, see, for example, order in Micşa (C‑573/10, EU:C:2011:479, paragraph 47).

( 18 ) With regard to the principle of the investigation of the facts by the Court of its own motion, including in relation to national law, see OHIM v National Lottery Commission (C‑530/12 P, EU:C:2014:186, paragraph 44).

( 19 ) By virtue of its very nature, this aspect cannot find expression among the pleas regarding either a lack of jurisdiction or procedural matters which are open to appeal without restriction under Article 58 of the Statute, because the question of jurisdiction ultimately follows from Article 272 TFEU in conjunction with the arbitration clause, and the issue of the conditions for admissibility of an action for a declaratory judgment does not affect the course of the procedure as such.

( 20 ) Edwin v OHIM (C‑263/09 P, EU:C:2011:452, paragraphs 48 to 53).

( 21 ) This issue was not covered in any greater detail in Commune de Millau and SEMEA v Commission (C‑531/12 P, EU:C:2014:2008); see my Opinion in that case (EU:C:2014:1946).

( 22 ) For settled case-law, see, inter alia, Cañas v Commission (C‑269/12 P, EU:C:2013:415, paragraph 15); Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 61) and Wunenburger v Commission (C‑362/05 P, EU:C:2007:332, paragraph 42).

( 23 ) See, to that effect, Opinion of Advocate General Bot in Abdulrahim v Council and Commission (EU:C:2013:30, points 51 and 55).

( 24 ) In this regard, the statements made by the appellant are vaguely reminiscent of the concept of an ‘intérêt de sécurité juridique’ (‘interest in legal certainty’) developed in French legal literature, which has not, however, met with an unequivocal response in case-law (see, with regard to case-law, Grayot-Dirx, S., ‘Une action en justice peut-elle naître indépendamment d’un litige?’, Recueil Dalloz 2011, 2311), let alone in the recently recodified Code de procédure civile (Code of Civil Procedure). With regard to the concept, see Guinchard, S., Chainais, C., and Ferand, F., ‘Procédure civile’, 31st edition, Dalloz, Paris 2012, paragraph 134. No further comments need be made on this matter in view of the fact that, in the light of the foregoing, it is not national law but EU law that is authoritative as regards an interest in obtaining a declaration.

( 25 ) See, in this regard, my Opinion in Commune de Millau and SEMEA v Commission (EU:C:2014:1946).