Joined Cases T-314/03 and T-378/03

Musée Grévin SA

v

Commission of the European Communities

(Phare/JOP Programme – Joint venture project in Poland – Community financing – Claim for reimbursement of the full amount paid – Arbitration clause – Action for annulment – Inadmissibility)

Order of the Court of First Instance (Third Chamber), 10 May 2004

Summary of the Order

1. Actions for annulment – Action really relating to a contractual dispute – Lack of jurisdiction of the Community courts – Inadmissibility

(Arts 225 EC, 230 EC, 238 EC, 240 EC and 249 EC)

2. Actions for annulment – Action really relating to a contractual dispute – Reclassification of action – Excluded

(Arts 230 EC and 238 EC; Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

1. An action for annulment brought against letters of the Commission seeking to recover funds paid by way of subsidies granted in the context of the JOP programme, which itself was implemented in the context of the Phare programme, is inadmissible inasmuch as the letters are part of a purely contractual context from which they are inseparable and where, by their very nature, they are not among the measures covered by Article 249 EC, annulment of which may be sought before the Community judicature pursuant to the fourth paragraph of Article 230 EC.

(see paras 85, 87)

2. When faced with an annulment action whereas the dispute is, in reality, contractual in nature, the Court of First Instance cannot reclassify the action if, first, the applicant has expressly stated in its pleadings that the action is not based on Article 238 EC, and, secondly, contrary to what is provided in Article 44(1)(c) of the Rules of Procedure, the applicant does not raise, even briefly, any plea, argument or complaint alleging infringement of the law of the Member State which applies to the agreement in question by virtue of the arbitration clause contained in that agreement.

(see para. 88)

ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

10 May 2004 ( )

(Phare/JOP programme – Joint venture project in Poland – Community financing – Claim for repayment of the full amount paid – Arbitration clause – Action for annulment – Inadmissibility)

In Joined Cases T-314/03 and T-378/03,

Musée Grévin SA, established in Paris (France), represented by B. Geneste and O. Davidson, lawyers,

applicant,

v

Commission of the European Communities, represented by J. Sack and G. Boudot, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATIONS for annulment of the letters of the Commission of 8 July and 30 September 2003 to Crédit Lyonnais seeking to recover the funds paid to the applicant by way of subsidies granted in connection with the JOP programme – Facilité 2,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges,

Registrar: H. Jung,

makes the following

Order

Legislative background

1 The Community Phare programme, based on Council Regulation (EEC) No 3906/89 of 18 December 1989 on economic aid to the Republic of Hungary and the Polish People’s Republic (OJ 1989 L 375, p. 11), as amended for the purpose of extending the economic aid to other central and eastern European countries, is the framework within which the European Community channels economic aid to the countries of central and eastern Europe (‘the CCEE’) in order to implement measures intended to support the process of economic and social reform under way in those countries.

2 By a communication published in the Official Journal of the European Communities on 22 February 1991, entitled ‘Programme for promoting the establishment of joint ventures in the [CCEE] – Expression of interest by financial institutions’ (OJ 1991 C 46, p. 11) (‘the communication of 22 February 1991’), the Commission announced that it had decided, under the Phare programme, to conduct a programme to promote private investment in the CCEE by establishing and developing joint ventures between companies in the European Community, primarily small and medium-sized enterprises, and local partners (‘the JOP programme’).

3 In accordance with that communication, the JOP programme is managed via a network of financial intermediaries selected by the Commission on the basis of criteria laid down in the communication (point 1). The role of the network is inter alia to promote the programme, to identify potential investors, to assess the projects submitted and to administer the Community funds granted to the beneficiaries (point 3). For that purpose, an agreement is signed between the Commission and each financial intermediary selected. This sets out the terms of the authority granted to that intermediary (point 4).

The agreements in question

4 On 1 February 1996 the Commission and Crédit Lyonnais (‘CL’) concluded, in connection with the JOP programme, a framework agreement establishing the detailed rules of their cooperation for the purpose of promoting investment in the CCEE, inter alia by creating joint ventures.

5 Under Article 1.1 of the framework agreement, the financing of an individual project under the agreement requires the prior submission by the financial intermediary, in this case CL, of an ‘application’ to the Commission for its approval, and then the conclusion, respectively, of a specific agreement between the Commission and the financial intermediary setting out the detailed rules of the financing of the project and a ‘finance agreement’ between the financial intermediary and the beneficiary setting out the detailed rules for the provision by the financial intermediary, acting as agent of the Commission, of the Community funds relating to the project in question.

6 Under Article 3.2 of the agreement, cooperation in respect of ‘Facilité 2’ of the programme consists in the financing of prefeasibility and feasibility studies up to the stage of the travaux préparatoires relating to the implementation of the joint venture project.

7 Articles 6.3.1 and 6.3.2 of the framework agreement provide for the reimbursement, subject to certain limits, of 50% of the eligible costs relating to the prefeasibility studies and the payment of an interest-free advance of 50% of the eligible costs relating to the feasibility studies. Article 6.3.3 of the framework agreement provides that, if the project is actually completed, all the eligible costs relating to the feasibility study, subject to certain limits, will be borne by the Commission. The eligible costs are defined in Article 10.2 of the framework agreement.

8 Under Article 7.1 of the framework agreement, CL, as financial intermediary, is entrusted with managing the funds in question on behalf of the Community. On that basis, CL is inter alia responsible, in dealings with the beneficiaries, for any payment to or from them.

9 Article 18.3 of the framework agreement provides that, if the beneficiary does not furnish adequate documentary evidence of the use of the funds for the purposes of the eligible objectives, the financial intermediary will recover from the beneficiary the funds advanced by the Commission.

10 Article 20.1 of the framework agreement provides that the law applicable to the agreement and to the other detailed rules in force at any time between the Commission and CL is Luxembourg law. Under Article 20.2 of the agreement, the parties undertake, pursuant to Article 238 EC, to submit any dispute concerning the validity, interpretation or performance of the framework agreement to the exclusive jurisdiction, as appropriate, of the Court of Justice or the Court of First Instance.

11 On 25 June 1996 CL sent the Commission the applicant’s application for Community financing in connection with ‘Facilité 2’ of the JOP programme in order to create a joint venture in Poland in the field of cultural tourism. In that application, the applicant is named as the beneficiary of the project.

12 After approving the application, the Commission, on 12 November 1996, sent CL a draft specific agreement setting out the rights and obligations of the parties, in accordance with the provisions of the framework agreement. On 19 November 1996 the specific agreement was signed by CL.

13 Article 8 of the specific agreement provides that the beneficiary may be required to reimburse the Community funds, in accordance inter alia with Article 18.3 of the framework agreement.

14 Under Article 11 of the specific agreement, the law applicable to the agreement is Luxembourg law and the parties undertake, pursuant to Article 238 EC, to submit any dispute concerning the validity, interpretation or performance of the agreement to the exclusive jurisdiction, as appropriate, of the Court of Justice or the Court of First Instance.

15 On 26 November 1996 CL and the applicant concluded a finance agreement.

16 By that finance agreement, CL, in its capacity as agent of the Commission, grants the applicant, pursuant to Article 2 of the agreement, an interest-free advance of a maximum sum of EUR 53 362, representing 50% of the eligible costs incurred in carrying out the feasibility study relating to the project in question. Article 3.1 of the agreement states that that advance will be made available to the applicant in two successive instalments of no more than EUR 32 017 and EUR 21 345, subject to the terms and conditions of that agreement.

17 Under Article 4 of the finance agreement, the eligible costs are the costs of the external and internal experts’ reports incurred or borne by the applicant for carrying out the feasibility study.

18 Article 6.2.3 of the finance agreement provides that, if the supporting documents sent to CL are not approved by CL and by the Commission, or if it transpires that an eligible cost is clearly excessive in relation to the quality and extent of the feasibility study, CL, on behalf of the Commission, may require reimbursement of all or part of the funds made available to the applicant.

19 Article 6.3 of the finance agreement states that, if the applicant is unable actually to complete the project before the deadline for its completion, it may nevertheless be entitled to have the interest-free advance converted into a subsidy in return for handing the feasibility study over to the Commission which, in such a case, may use it however it wishes.

20 Article 9.1.1 of the finance agreement states that the applicant undertakes to use the funds made available to it exclusively for paying the eligible costs. Article 9.1.5 of the agreement stipulates that the applicant undertakes to permit and enable the Commission’s staff to carry out any inspections, checks and assessments considered necessary and to provide them with all the documents and information requested.

21 Article 14 of the finance agreement provides that the validity, interpretation and performance of the agreement are subject to Luxembourg law.

22 Under Article 15 of the agreement, ‘any dispute arising out of the finance [agreement] or of its consequences will fall within the exclusive jurisdiction of the Court of Justice’.

Facts

23 In accordance with the finance agreement, the Commission, on 20 January 1997, paid CL the sum of EUR 8 710 by way of reimbursement of the eligible costs relating to the feasibility study for the project. On the same date the Commission also paid CL the sum of EUR 32 017, in the form of an interest-free advance, corresponding to 60% of the part payable by the Commission of the eligible costs relating to the feasibility study.

24 On 16 March 1998 the feasibility study relating to the project in question was sent to the Commission.

25 On 15 December 1998 the Commission, in accordance with the finance agreement, paid CL the sum of EUR 16 871, representing, in the form of an interest-free advance, the balance of 40% of the part payable by the Commission of the eligible costs relating to the feasibility study.

26 By letter dated 14 January 2000, sent to CL on 7 April 2000, the Commission, after noting the failure to complete the joint venture which was the subject of the finance agreement, stated that it agreed to convert the interest-free advances relating to the financing of the feasibility study into a subsidy of EUR 48 888.

27 By fax of 13 September 2002, the Commission informed CL that it intended to carry out an inspection at the applicant’s premises in order to check, in particular, whether the costs stated in respect of the feasibility study had actually been incurred and paid by the applicant. For that purpose, it asked CL to make sure that the applicant would give it access inter alia to the originals of the relevant supporting documents. The Commission also stated that, if those requirements were not met, it reserved the right to claim reimbursement of the funds already provided.

28 On 8 November 2002 the Commission carried out that inspection at the applicant’s premises.

29 By fax of 13 November 2002, the Commission sent CL a list of the original supporting documents not provided during the inspection, and asked for them to be supplied by 15 December 2002. The Commission stated that, if those documents were not supplied within the time-limit set, it reserved the right to claim reimbursement of all the funds received by the applicant in connection with the project in question.

30 By letters dated 19 December 2002 and 30 January 2003, the applicant supplied the Commission with some of the documents for which it had asked.

31 By letter to CL dated 8 July 2003 (‘the letter of 8 July 2003’), the Commission stated that the applicant had not supplied all the supporting documents requested, and that, since the eligible costs relating to the prefeasibility and feasibility studies had not been substantiated by documentary evidence, the applicant had not established that the Community financing in question had been used in accordance with the objectives stated in the financing application. The Commission therefore informed CL that all the funds paid to the applicant under ‘Facilité 2’ of the project in question, namely EUR 57 598 and the interest thereon, a total sum of EUR 77 680.97, had to be repaid. To that end, the Commission asked CL to inform the applicant of that measure and of the reasons for it; it also told CL that it would communicate its instructions for the transfer of the amounts to be repaid to the Community’s financial accounts when CL had confirmed that it had received them. The Commission also stated that if repayment were not made within two months from the date of that letter, CL should inform it of the steps to be taken in order to enforce payment.

32 By letter of 11 July 2003, CL asked the applicant to repay the sums in question by 8 September 2003.

33 By letter of 8 September 2003, the applicant sent the Commission additional documentary evidence and requested that it reconsider its letter of 8 July 2003 in the light of that evidence.

34 By letter of 30 September 2003 (‘the letter of 30 September 2003’), the Commission informed CL that it maintained the position it had expressed in its letter of 8 July 2003, pointing out, in particular, that several important original documents had not been furnished. Accordingly, the Commission asked CL to recover the sums to be repaid and, if repayment were not made within one month from the date of that letter, to inform it of the steps to be taken in order to enforce payment.

35 By letter of 6 October 2003, CL asked the applicant to repay the sums in question by 30 October 2003.

36 By letter of 5 November 2003, CL informed the Commission that it had at its disposal all the sums repaid by the applicant.

Procedure and forms of order sought

37 By application lodged at the Court Registry on 15 September 2003, the applicant brought an action against the letter of 8 July 2003. That action was registered under number T-314/03.

38 By application lodged at the Court Registry on 18 November 2003, the applicant brought an action against the letter of 30 September 2003. That action was registered under number T-378/03.

39 In support of these actions, the applicant raises joint pleas alleging, respectively, infringement of Article 1 of Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59), failure to comply with the limitation period laid down in Article 3 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1), infringement of the principle of collegiate responsibility and lack of competence of the signatory of the letters of 8 July and 30 September 2003, manifest errors of assessment, lack of any legal basis, infringement of the obligation to state reasons laid down in Article 253 EC and infringement of the principle of proportionality. In its application in Case

T-314/03, the applicant also puts forward a plea alleging infringement of the principle of audi alteram partem and the rights of the defence.

40 By separate document lodged at the Court Registry on 18 December 2003, the Commission lodged an objection of inadmissibility in Case T-314/03 pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance.

41 On 19 December 2003, by separate document, the Commission lodged an objection of inadmissibility in Case T-378/03 pursuant to Article 114(1) of the Rules of Procedure.

42 By order of the President of the Third Chamber of the Court of First Instance of 20 January 2004, Cases T-314/03 and T-378/03 were joined for the purposes of the written procedure and the oral procedure.

43 The applicant submitted its observations on the objections of inadmissibility on 1 March 2004, the date on which the written procedure on admissibility ended.

44 The applicant claims that the Court should:

– annul the measures contained in the letters of 8 July and 30 September 2003 (hereinafter together called ‘the contested letters’);

– order the Commission to pay the costs.

45 The Commission contends that the Court should:

– dismiss the actions as inadmissible;

– order the applicant to pay the costs.

Law

46 Under Article 114(1) of the Rules of Procedure, the Court may rule on inadmissibility without going to the substance of the case, if one of the parties so requests. Under Article 114(3), the rest of the procedure is oral, unless the Court decides otherwise.

47 In the present case, the Court considers that it has sufficient information in the documents before it to give a ruling on the claim brought by the Commission without opening the oral proceedings.

Arguments of the parties

48 The Commission pleads the inadmissibility of these actions on the ground that, by basing its applications on Article 230 EC, the applicant has committed an abuse of process because it should have brought its actions under Article 238 EC.

49 In essence, the Commission claims that the contested letters form part of a contractual framework from which they are wholly inseparable and that therefore they cannot be described as administrative decisions constituting measures covered by Article 249 EC, annulment of which may be sought before the Community judicature pursuant to the fourth paragraph of Article 230 EC (orders in Case T-186/96 Mutual Aid Administration Services v Commission [1997] ECR II-1633, paragraphs 50 and 51; Case T-149/00 Innova v Commission [2001] ECR II-1, paragraph 28; and Case T-85/01 IAMA Consulting v Commission [2003] ECR II‑4973, paragraph 53).

50 The applicant maintains that it is entitled to seek annulment of the contested letters under Article 230 EC.

51 In this regard, the applicant points out, first, that, although an arbitration clause was inserted in each of the three agreements in question, no contract links it directly to the Commission. Since the jurisdiction of the Court of Justice and the Court of First Instance, which is based on an arbitration clause, derogates 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), arbitration clauses are binding only on the parties to the contracts in which they are inserted and are therefore not effective against third parties.

52 Therefore, since the Commission and the applicant are not parties to the same contract, the Commission cannot raise against it one of the arbitration clauses provided for in the present case. The situation in the present case is therefore different from that which gave rise to the order in IAMA Consulting v Commission, cited in paragraph 49 above, in which the arbitration clause had been inserted in a contract concluded between the applicant and the Commission.

53 In that regard, the applicant also considers that the order in Mutual Aid Administration Services v Commission, cited in paragraph 49 above, concerned facts which were totally different from those at issue in the present case, since that case involved an action brought by one party to a contract against the other party, namely the Commission, asking the Court of First Instance, in reality, to order the Commission to fulfil its contractual obligations. Given the way in which contractual proceedings are instituted and the plea of ‘other available remedy’, the action for annulment brought by one party to the contract was rightly declared inadmissible.

54 As regards the order in Innova v Commission, cited in paragraph 49 above, the applicant points out that it merely establishes that, where a contract does not contain an arbitration clause, the Court of First Instance does not have jurisdiction to hear and determine a case concerning a decision cancelling the contract taken by the Commission against the other party to the contract, which cannot legitimately seek annulment of the decision in question on the basis of Article 230 EC in accordance with the ‘other available remedy’ plea.

55 In those circumstances, the applicant considers that, since there is no contractual relationship between itself and the Commission, the present actions for annulment should be deemed admissible. In that regard, it points out that the Commission cannot both complain that the applicant has not brought the present actions under Article 238 EC and also state that there are no contractual relations between itself and the Commission.

56 The applicant maintains that, under the fourth paragraph of Article 230 EC, an individual applicant is entitled to bring an action against a decision producing the ‘binding legal effects of such a kind as to affect the applicant’s interests by clearly altering his legal position’ (judgment of the Court of Justice in Case 60/81 IBM v Commission [1981] ECR 2639). In that regard, the case-law accepts inter alia that a letter, drafted in precise and unequivocal terms, in which the Commission rejects an application for Community financial aid is an act against which an action may be brought (order in Joined Cases T-452/93 and T-453/93 Pevasa and Inpesca v Commission [1994] ECR II-229). The Community judicature has also accepted that an application for annulment of a decision reducing the overall amount of Community financial aid is admissible (Joined Cases T-432/93 to T‑434/93 Socurte and Others v Commission [1995] ECR II-503).

57 The applicant points out that the contested letters seek recovery of all the Community funds paid to the applicant and expressly state that the total amount to be repaid includes interest on that sum. By those letters, the Commission also imposes a final payment date on the applicant.

58 According to the applicant, the contested letters clearly constitute restrictive measures having binding legal effects on the applicant, first, in that they order recovery of the funds, secondly, in that they require the applicant to pay interest and, thirdly, in that they order it to pay within a certain time-limit, beyond which proceedings to enforce recovery will be brought against it.

59 The applicant also points out that, since it has fulfilled all of its contractual obligations, the claim for reimbursement in question relates to a vested right. In fact, that claim seeks to remove from the applicant’s assets an advance granted by way of financing for a regional development project, an advance which, on 14 January 2000, was definitively converted into a subsidy by the Commission.

60 On those grounds, the applicant considers that it is entitled to bring an action for annulment against the contested letters.

Findings of the Court

61 By its plea of inadmissibility, the Commission maintains that these actions are incorrectly based on Article 230 EC.

62 Under Article 230 EC, the Community Courts review the legality of acts of the institutions intended to produce legal effects vis-à-vis third parties.

63 According to settled case-law, that jurisdiction concerns only the acts referred to by Article 249 EC, which the institutions must adopt under the conditions laid down by the Treaty (orders in Innova v Commission, cited in paragraph 49 above, paragraph 28, and Case T-387/00 Comitato organizzatore del convegno internazionale v Commission [2002] ECR II-3031, paragraph 39).

64 By contrast, measures adopted by the institutions in a purely contractual context from which they are inseparable are, by their very nature, not among the measures covered by Article 249 EC, annulment of which may be sought before the Community judicature pursuant to Article 230 EC (orders in Mutual Aid Administration Services v Commission, cited in paragraph 49 above, paragraphs 50 and 51; Innova v Commission, cited in paragraph 49 above, paragraph 28; Comitato organizzatore del convegno internazionale v Commission, cited in paragraph 63 above, paragraph 39; and IAMA Consulting v Commission , cited in paragraph 49 above, paragraph 53).

65 It is settled case-law that, by virtue of the combined provisions of Articles 225 EC and 238 EC, the Court of First Instance does not have jurisdiction to give judgment in disputes relating to contractual matters brought before it by natural or legal persons unless there is an arbitration clause to that effect. If it were otherwise, the Court would be extending its jurisdiction beyond the limits placed by Article 240 EC on the disputes of which it may take cognisance, since that article gives national courts or tribunals ordinary jurisdiction over disputes to which the Community is a party (orders in Mutual Aid Administration Services v Commission, cited in paragraph 49 above, paragraph 47; Innova v Commission, cited in paragraph 49 above, paragraph 25; and Comitato organizzatore del convegno internazionale v Commission, cited in paragraph 63 above, paragraph 37).

66 In the present case, it is therefore necessary to consider whether the contested letters are among the measures covered by Article 249 EC, applications for the annulment of which fall within the exclusive jurisdiction of the Community Court pursuant to Article 230 EC, or whether, on the contrary, they are contractual in nature.

67 In that regard, it must be stated, first, that the legal relationship which is the subject of this dispute forms part of a contractual framework.

68 Regulation No 3906/89, as amended, on which the Phare programme is based, merely sets out the general conditions for Community economic aid for the countries concerned, in particular the areas in which the actions must be undertaken and the form of that aid. On the other hand, the regulation does not lay down any of the general or specific procedures according to which each individual action is financed by the Community.

69 The communication of 22 February 1991 expressly provides that Community financing granted under the JOP programme is managed by a network of financial intermediaries which, for that purpose, have concluded an ‘agreement’ with the Commission. According to that communication, that agreement must contain ‘the terms of contracts’ concluded with the financial intermediaries.

70 In the present case, the Commission and CL, as financial intermediary, thus concluded a framework agreement setting out the general terms of their cooperation in order to promote investment in the CCEE, inter alia through the creation of joint ventures. According to the provisions of the framework agreement, that agreement is implemented in respect of an individual project by a specific agreement concluded between the Commission and the financial intermediary, setting out the specific detailed rules of the financing for that project, and by a finance agreement concluded between the financial intermediary and the beneficiary, in this case the applicant, setting out the detailed rules for the provision by the financial intermediary, as agent of the Commission, of the Community funds designed to finance part of the eligible costs of the project in question. Under that finance agreement, the applicant undertakes, in particular, to use the Community funds granted exclusively to pay the eligible costs.

71 It follows that the relationship between the Commission and CL, on the one hand, and between CL and the applicant, on the other, may be regarded as contractual, since all the detailed rules of the financing of the project concerned are set out in the relevant agreements concluded by the Commission with CL and by CL, as agent of the Commission, with the applicant (see to that effect Case C-142/91 Cebag v Commission [1993] ECR I-553, paragraphs 11 to 13, and T‑134/01 Hans Fuchs v Commission [2002] ECR II-3909, paragraphs 51 to 53).

72 The existence of those contractual relationships is also confirmed by the presence, in each of the agreements in question, of a clause granting the Court of First Instance exclusive jurisdiction to hear and determine any dispute concerning the validity, interpretation or performance of those agreements. That clause has reasonable meaning only if a contractual relationship exists between the parties (see to that effect Hans Fuchs v Commission, cited in paragraph 71 above, paragraph 54).

73 It must be stated that the subject of the dispute in this case is directly linked to the provisions of the agreements in question, since the dispute relates to the reimbursement of the Community financing provided for in the contested letters, that reimbursement constituting, as is apparent, inter alia, from Article 18.3 of the framework agreement, Article 8 of the specific agreement and Article 6.2.3 of the finance agreement, the penalty for the applicant’s failure to fulfil its obligations with regard to the use of the funds granted to it to pay the eligible costs and to the production of documents substantiating that use (see to that effect the orders in Innova v Commission, cited in paragraph 49 above, paragraph 27, and IAMA Consulting v Commission, cited in paragraph 49 above, paragraph 44).

74 However, in spite of the contractual framework of the legal relationship which is the subject of the present proceedings, it must be stated that the case before the Court is not a claim pursuant to Article 238 EC but an action for annulment under Article 230 EC.

75 That is the obvious conclusion of an analysis of the applications initiating the proceedings.

76 The applicant refers to its actions as ‘actions for annulment’, bases their admissibility on the provisions of Article 230 EC and sets out forms of order seeking a declaration, in essence, of the unlawfulness and consequent annulment of the measures allegedly contained in the letters of 8 July and 30 September 2003, by which the Commission informed the applicant, through CL, that it was required to repay all the Community financing paid to it in connection with the project in question.

77 In that regard, it must be pointed out, in particular, that, in support of its claim, the applicant makes no reference to Article 238 EC or to the arbitration clauses contained in the agreements in question, nor does it put forward any plea, complaint or argument under Luxembourg law, which is, however, the only law applicable to the agreements in question, by virtue of those arbitration clauses, but raises, as is apparent from paragraph 39 above, ‘grounds for annulment’ alleging infringement of rules of Community law in order to establish that the measures allegedly contained in the contested letters are vitiated by defects characteristic of administrative measures, such as inter alia the failure to state grounds, lack of legal basis and manifest error of assessment.

78 In its observations on the plea of inadmissibility, the applicant also expressly stated that these actions are not based on Article 238 EC but only on Article 230 EC. The applicant even pointed out, in that regard, that, in its opinion, these actions cannot be based on Article 238 EC. The applicant maintains that the arbitration clauses contained in the agreements in question may be used only against the parties to the agreements in which they are inserted. The applicant considers that, in the present case, there is no contractual relationship between itself and the Commission.

79 It appears, therefore, that the applicant is applying to the Court pursuant to Article 230 EC for the annulment of measures adopted by a Community institution, which, although they form part of a contractual framework, are, in the applicant’s view, administrative measures.

80 However, the letters of 8 July and 30 September 2003 are by no means administrative measures.

81 Nothing in those letters supports the conclusion that the Commission acted, in the present case, in the exercise of its prerogatives as a public authority. By those letters, the Commission, on the basis of the interpretation of the facts and relevant clauses in the agreements at issue, in essence simply informed the applicant, through CL, that it was required to reimburse the Community funds granted to it in connection with the project in question. By so doing, the Commission acted only within the framework of the rights and obligations arising out of the agreements at issue, as they emerge, in particular – as has already been stated in paragraph 73 above – from Article 18.3 of the framework agreement, Article 8 of the specific agreement and Article 6.2.3 of the finance agreement, which stipulate that the Commission shall be able to recover the Community financing from the beneficiary if the beneficiary fails to supply the supporting documents needed to prove the use of those funds.

82 That finding is in no way affected by the fact that the aims pursued by the Commission, through the conclusion of the agreements referred to in this case, form part of the task of general interest entrusted to it in the context of the JOP programme (see to that effect the order in IAMA Consulting v Commission, cited in paragraph 49 above, paragraph 51).

83 In that regard, it must be pointed out that, contrary to what occurs in connection with the grant of financial assistance by the Structural Funds referred to in the first paragraph of Article 159 EC, the claim for reimbursement presented by the Commission in the present case is based not on the provisions of a Community rule within the meaning of Article 249 EC but, as has already been stated in paragraphs 73 and 81 above, on the contractual provisions laid down in the agreements in question. The applicant is therefore wrong to try and base the admissibility of these actions on the principles laid down by the Court in the course of actions for annulment brought against Commission decisions concerning Structural Funds.

84 Therefore, the contested letters form no part at all of the Commission’s exercise of its prerogatives as a public authority, so that those letters cannot be enforceable (see to that effect the order in IAMA Consulting v Commission, cited in paragraph 49 above, paragraph 52). In that regard, it should also be pointed out that, in each of those letters, the Commission expressly asks the financial intermediary to inform it of the steps to be taken to recover the payments if the applicant does not repay the sums within the time-limits set.

85 It is apparent from the foregoing that the contested letters form part of a purely contractual framework from which they are inseparable and that, by their very nature, they are not among the measures covered by Article 249 EC, annulment of which may be sought before the Community Court under Article 230 EC.

86 That conclusion cannot be affected by the applicant’s claim that, in order to preserve its good relations with CL, its intention was that CL should not be put in an awkward position vis-à-vis the Commission. That situation, which is the consequence of a choice freely made by the applicant for reasons of expediency in its own interest, obviously cannot affect the fact that the contested measures are inseparable from the contractual framework of which they form part and alter their nature so as to confer on the Court jurisdiction to declare them void under Article 230 EC.

87 Accordingly, these actions, since they seek the annulment, pursuant to Article 230 EC, of measures of a purely contractual nature, cannot be admissible.

88 It is true that the Court of First Instance has agreed, in an action for annulment when the dispute was, in reality, contractual in nature, to reclassify the action (Case T-26/00 Lecureur v Commission [2001] ECR II-2623, paragraph 38). However, in the present case, the Court cannot make such a reclassification since the applicant itself has expressly stated in its pleadings that these actions are not based on Article 238 EC and, contrary to what is provided in Article 44(1)(c) of the Rules of Procedure, the applicant does not raise, even briefly, any plea, argument or complaint alleging infringement of Luxembourg law, which, under the arbitration clauses inserted in those agreements, is the only law applicable to the agreements in question.

89 In the light of all the foregoing, these actions must therefore be dismissed as inadmissible.

Costs

90 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 pleadings. Since, in this case, the applicant has been unsuccessful, and the Commission has asked for costs, the applicant must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1. The applications are dismissed as inadmissible.

2. The applicant shall bear the costs.

Luxembourg, 10 May 2004.

H. Jung J. Azizi