OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 24 February 2015 ( 1 )

Case C‑506/13 P

Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro AE

v

European Commission

‛Appeals — Actions for annulment — Actionable measures — Trans-European networks — Contract concerning financial assistance of the European Union for the ‘Ward in Hand’ project, concluded in the context of a dedicated research programme in the field of medical collaboration — Failure by a beneficiary of assistance to comply with its contractual obligations — Obligation to repay unduly received advances — Debit note — Non-actionable measure — Measure inseparable from its contractual context — Inadmissibility of the action for annulment — Counterclaim by the Commission — Order requiring the beneficiary to repay undue sums — Default interest’

1. In the present case, an appeal is brought before the Court of Justice against the judgment of the General Court of the European Union in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, ( 2 ) by which the General Court, firstly, dismissed as inadmissible the action for annulment brought by Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro ( 3 ) against a debit note issued by the European Commission ordering it to repay sums which the Commission considered had been unduly paid to it in the context of a research contract and, secondly, upheld in its entirety the counterclaim brought by the Commission in response with a view to securing the repayment of the contested sums, including default interest.

2. The General Court found, in the present case, that the debit note at issue was inseparable from the contractual context in which it had been issued, and that, therefore, it did not constitute an actionable measure on the basis of Article 263 TFEU.

3. The Court of Justice is thus called upon to rule, first of all, on a line of relatively settled case-law of the General Court which it has as yet never had occasion to examine, according to which unilateral measures adopted by the institutions in the context of the enforcement of contracts concluded with natural or legal persons, such as the debit note at issue, cannot be challenged by means of the action for annulment provided for in Article 263 TFEU because they cannot be separated from their contractual context even where they purport to be ‘enforceable’ within the meaning of Article 299 TFEU, but must rather be contested by means of the contractual remedy provided for in Article 272 TFEU. It will therefore be for the Court to decide, in response to the question of principle posed by the appellant’s first ground of appeal, whether that case-law should be confirmed, overturned or perhaps qualified.

4. In other words, the question to be resolved is whether, under EU law, the judicial protection of natural or legal persons who conclude contracts with the institutions, bodies, offices and agencies of the European Union from unilateral measures adopted by the latter in the context of the enforcement of those contracts may fall within the jurisdiction of a court hearing an action for annulment and, if so, subject to which conditions or whether — on the contrary — in the context of the system of legal procedures introduced by the FEU Treaty, a strict dividing line should be drawn between the field of contractual disputes and that of actions for annulment and, accordingly, whether what is referred to in certain national legal systems as a parallel remedy should be established. ( 4 )

5. Depending on the answer given by the Court to that question of principle, it will also fall to it to examine the nine other pleas raised by the appellant in its appeal and the question of whether, in the present case, the General Court was entitled to find the request for repayment of the sums which it is alleged were unduly paid, including default interest, to be well founded.

I – Background to the dispute

6. It is clear from paragraphs 1 to 8 of the judgment under appeal and from the written observations submitted by the parties that Lito Maieftiko is a maternity hospital that is member of a consortium which, in the context of the e-TEN programme, a programme falling within the trans-European networks policy, concluded with the Commission on 12 May 2004 contract C510743 concerning the ‘Ward in Hand’ (WIH) ( 5 ) project, a dedicated research programme in the field of medical collaboration.

7. Article 19 of the general conditions contained in Annex II to that contract ( 6 ) stated: ‘1. Where an amount is paid unduly to a contracting party or where recovery is justified under the conditions of the contract, the beneficiary undertakes to repay to the Commission the sum in question subject to the conditions and on the date to be specified by the Commission. 2. Where the beneficiary fails to make payment on the date fixed by the Commission, the sum shall accrue interest at the rate stated in Article [3(6) of the general conditions]. The late-payment interest shall cover the period commencing on the day following the date fixed for payment and concluding on the evening of the date on which the Commission receives payment in full of the amount due. Any partial payment will be imputed firstly to the costs and late-payment interest and then to the principal amount.’

8. In the context of the performance of that project, which began on 1 May 2004 and concluded on 31 January 2006, Lito Maieftiko received a total of EUR 99349.50 in financial assistance from the European Union.

9. By letter of 29 April 2009, the Commission informed Lito Maieftiko that it would be subject to a financial audit on account of its participation in the WIH project and that it would be required to submit the time sheets of the staff employed in that context, recording the hours worked, hours for which it was seeking reimbursement. Lito Maieftiko was unable to produce those time sheets in the course of that audit, which was carried out from 4 to 6 August 2009.

10. By letter of 20 October 2009, the Commission sent the appellant the draft audit report, in which it noted that the abovementioned time sheets were missing, and asked the appellant to submit its observations.

11. By e-mails of 13 and 16 November 2009, the appellant submitted its observations on the draft audit report and sent the time sheets relating to the work devoted to the project.

12. By letter of 23 December 2009, the Commission sent the appellant the final audit report, in which it maintained the findings made in the draft report.

13. On 25 October 2010, the Commission sent the appellant an information letter prior to a recovery procedure, in which it stated that an amount of EUR 93778.90 was to be repaid.

14. Taking into account the observations made by the appellant, by letter of 24 May 2011 the Commission reduced the amount to be repaid to EUR 83001.09. By letter of 17 June 2011, the appellant submitted its observations in this regard.

15. On 16 September 2011, the Commission sent the appellant a debit note issued on 9 September 2011, ( 7 ) in which the appellant was asked to repay the sum of EUR 83001.09 to the Commission by 24 October 2011.

16. Under the heading ‘Conditions of payment’, the contested debit note stated as follows: ‘Conditions of payment: 1. You are liable for all bank charges unless Directive 2007/64/EC on payment services in the internal market applies to you; 2. The Commission reserves the right, after giving prior notification, to offset any amounts in the case of mutual debts which are certain, of a fixed amount and due. 3. Where the Commission’s account has not been credited by the final date for payment, the debt certified by the European Union shall bear interest at the rate applied by the European Central Bank to its main refinancing operations, as published in the [Official Journal of the European Union], C series, applicable on the first calendar day of the month of the final date for payment [October 2011 + 3.5%]. 4. Where the Commission’s account has not been credited by the final date for payment, the Commission may: — implement any financial guarantee at first request; — proceed to any enforcement pursuant to Article [299 TFEU]; — record the failure to pay in a database accessible to the administrators of the Community budget until payment has been received in full; — publish the name of the debtor ordered by a judicial decision to make payment.’

17. By letter of 3 November 2011, the Commission reminded the appellant of its debt, pointing out that that debt bore interest at a rate of 5% per annum, corresponding to EUR 11.37 per day of delay, such that, as at 18 November 2011, the interest accrued amounted to EUR 284.25.

II – The procedure before the General Court and the judgment under appeal

18. By application lodged at the Registry of the General Court on 24 October 2011, the appellant brought an action for annulment of the contested debit note.

19. By separate application of the same day, Lito Maieftiko also applied for the suspension of the operation of the contested debit note, an application which was dismissed by the order in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission. ( 8 )

20. By the judgment under appeal, the General Court first of all dismissed the action for annulment brought by Lito Maieftiko as inadmissible (paragraphs 19 to 31 of the judgment under appeal), finding, in essence, in line with the order given in the earlier case of Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission in particular, ( 9 ) that the contested debit note, which was issued in the context of the contract binding it to the Commission, is not one of the acts which may form the subject of an application for annulment made to the European Union judicature on the basis of Article 263 TFEU.

21. The General Court went on to examine the counterclaim brought on the basis of Article 272 TFEU by the Commission and asking it to order the appellant to pay to the Commission the amount of EUR 83944.80, which corresponds to EUR 83001.09 as the principal debt and EUR 943.71 as the default interest accrued as at 15 January 2012.

22. After examining the admissibility of that counterclaim and considering its own jurisdiction to hear and determine it (paragraphs 35 to 41), the General Court upheld the counterclaim (paragraphs 42 to 81). It therefore ordered Lito Maieftiko to pay the Commission EUR 83001.09 by way of the principal debt and EUR 11.37 per day in respect of default interest falling due from 25 October 2011 until the principal debt is discharged. It also ordered Lito Maieftiko to pay all the costs, including those relating to the proceedings for interim measures.

23. The grounds for the judgment under appeal will be reproduced, in so far as necessary, as part of the examination of the various pleas advanced in the appeal.

III – Procedure before the Court and form of order sought by the parties

24. The appellant brought the present appeal by an application lodged at the Registry of the Court on 11 September 2013.

25. By separate document lodged at the Registry of the Court on 23 September 2003, the appellant made an application for interim measures, under Articles 278 TFEU and 279 TFEU, seeking suspension of the operation of the judgment under appeal.

26. The application for interim measures was dismissed by the order in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission. ( 10 )

27. The appellant claims that the Court should: — set aside the judgment under appeal; — rule on the substance of the dispute or, failing that, refer the case back to the General Court for judgment; — dismiss the Commission’s counterclaim in its entirety; — annul the contested debit note; and — order the Commission to pay the costs.

28. The Commission contends that the Court should: — dismiss the appeal; — uphold the Commission’s counterclaim in its entirety; — dismiss the action for annulment of the contested debit note; and — order the appellant to pay all the costs of the present proceedings and of the proceedings for interim measures.

IV – Preliminary observations

29. There is an element of complexity attached to the present appeal, namely the consequence of the fact that, in the judgment under appeal, the General Court rules, by one single judicial decision, firstly, on an action for annulment brought pursuant to Article 263 TFEU, as the court hearing an action for annulment, declaring it to be inadmissible, and, secondly, on a counterclaim brought by the Commission on the basis of Article 272 TFEU and seeking the repayment by the appellant of the sums which the Commission considers were unduly paid to it, as the court hearing a contractual dispute, declaring it to be admissible and upholding it as to its substance.

30. Indeed, it is important to point out that, without ruling specifically in that regard and in a departure from its own case-law, ( 11 ) the General Court refused to grant the application made by the appellant, in the context of the reply submitted by it in the proceedings at first instance, ( 12 ) by which it sought the reclassification of the action for annulment as a contractual remedy.

31. It held, in the present case, that it had jurisdiction to hear and determine the counterclaim made by the Commission, ( 13 ) basing that view, in essence, on the interest in procedural economy and on the priority accorded to the court before which a matter is brought in the first instance, ( 14 ) by reference in that regard to the order in Commission v IAMA Consulting. ( 15 )

32. This rather unusual approach, ( 16 ) which the appellant attempted — unsuccessfully — to oppose in the context of its reply in the procedure before the General Court, is not, however, contested in the context of this appeal.

33. It follows that the pleas raised and the arguments advanced by the appellant in the context of its appeal are directed both against the part of the judgment which dismisses its action for annulment as inadmissible and against the part of that judgment which declares the counterclaim to be well founded. However, although its first plea relates clearly and exclusively to the judgment of the General Court in so far as that judgment dismisses its action for annulment as inadmissible, the other pleas are much more ambiguous. Although they do seek, in essence, the annulment of the General Court’s assessment of the substance of the Commission’s counterclaim, some of them in fact criticise the dismissal of the action for annulment as inadmissible and the consequences of that dismissal, which complicates the assessment of this appeal.

34. Those factors lead me to examine all the pleas raised in the appeal, even though I am of the view that, if the Court were to conclude, as I suggest that it should, that the first plea raised in the appellant’s appeal must be allowed and that the judgment of the General Court must be set aside, that judgment should be set aside in its entirety such that there would no longer logically be any need to rule on the other pleas.

V – The assessment of the admissibility of the action for annulment

A – The classification of the contested debit note (first plea in law)

1. Summary of the judgment of the General Court

35. The General Court made clear, first of all, that it had invited the appellant to submit its views on the issue of whether there were specific circumstances justifying an alternative assessment by the General Court of the admissibility of the appellant’s action to its assessment of an earlier action for annulment brought in a case with a similar object and declared inadmissible in that case by its order in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission. ( 17 )

36. Referring to that same order, the General Court then went on to restate the terms of its case-law, according to which the European Union judicature is to review, pursuant to Article 263 TFEU, the legality of the acts adopted by the institutions intended to produce legal effects vis-à-vis third parties by bringing about a distinct change in their legal position. ( 18 ) It made clear, firstly, that that power of review related only to the acts referred to in Article 288 TFEU that the institutions find it necessary to adopt subject to the conditions provided for in the FEU Treaty, by exercising the powers which they hold as public authorities. ( 19 ) It added, secondly, that the acts adopted by the institutions which fall within a purely contractual context from which they are inseparable do not, by reason of their very nature, number amongst the acts referred to in Article 288 TFEU, the annulment of which may be sought pursuant to Article 263 TFEU. ( 20 )

37. The General Court inferred from this that an action could lawfully be brought before it on the basis of Article 263 TFEU only if the purpose of the contested debit note were to produce binding legal effects extending beyond those arising from the contract and involving the exercise of the powers of a public authority conferred on the Commission in its capacity as an administrative authority. ( 21 )

38. It held, in the present case, first of all, that the contested debit note was issued within the context of the contract binding the Commission to the appellant, in so far as its purpose was the recovery of a debt having its basis in the provisions of the contract. ( 22 )

39. It went on to find that, contrary to the appellant’s claim, the contested debit note could not be separated from the contractual context into which it fell, and that there was no other factor on the basis of which it could be concluded that the Commission had acted in the exercise of its powers as a public authority. ( 23 )

40. Finally, it held that the statements contained in the contested debit note under the heading ‘Conditions of payment’ could not, despite their ambiguous nature, lead to the contested debit note being classified as a ‘definitive act’. ( 24 )

2. Arguments of the parties

41. The appellant submits that the General Court erred in law by finding, in paragraphs 28 to 31 of the judgment under appeal, that the contested debit note was not enforceable and that it could not, therefore, form the subject-matter of an action for annulment under Article 263 TFEU. It takes the view that that debit note corresponds precisely to the enforceable decision which the Commission reserved the right to adopt in accordance with Article 19(5) of the general conditions.

42. In its view, the enforceable nature of that debit note is confirmed by the fact that, firstly, it unilaterally lays down a deadline for payment of the sum claimed from which late-payment interest began to accrue, and that, secondly, it contains an express reference to the ability of the Commission to have recourse to the procedure provided for in Article 299 TFEU.

43. The Commission submits, first of all, that that first plea must be dismissed as inadmissible in so far as it seeks a review of the judgment given at first instance. It takes the view that, in any event, the plea is unfounded, since the General Court rightly held, in accordance with the principle of res judicata following settled case-law, ( 25 ) that the contested debit note was not an enforceable act but a preparatory act of a purely informative nature drawn up in the context of a purely contractual dispute. The Commission adds that the contested debit note does not constitute an expression of the exercise of powers held as a public authority and cannot, therefore, be regarded as separable from the contractual context into which it falls. ( 26 )

44. The Commission further points out that the fact that the contested debit note defined conditions of payment and imposed late-payment interest cannot call into question its classification as an ‘unenforceable act’.

3. Assessment

a) The admissibility of the plea

45. It should be pointed out first and foremost that, contrary to the Commission’s claim, the appellant’s first plea cannot be declared inadmissible. Indeed, the Commission takes the view, in essence, that the appellant is in fact seeking a review of the judgment of the General Court. However, the appellant asks the Court of Justice to find that the General Court erred in law by holding that the contested debit note did not number amongst the acts the annulment of which may be sought before the European Union judicature pursuant to Article 263 TFEU. In addition, that assessment forms part of the legal characterisation of the facts, which is subject to the review exercised by the Court of Justice in the context of an appeal. ( 27 )

b) The merits of the plea

46. It should be remembered that, in the first part of the judgment under appeal, the General Court dismissed the action for annulment brought by the appellant as inadmissible on the ground that the contested debit note did not number amongst the acts the annulment of which may be sought before the European Union judicature pursuant to Article 263 TFEU. ( 28 )

47. I wish to point out from the outset that it is my view that that finding is vitiated by an error of law.

48. It is important to point out that the judgment under appeal forms part of a line of case-law first established by the General Court some time ago ( 29 ) and which has been regularly applied since then, ( 30 ) albeit sometimes following a different statement of grounds, ( 31 ) to actions for annulment directed against acts adopted by the institutions, bodies, offices and agencies of the European Union in contractual contexts such as that at issue in the present case, and particularly against debit notes issued by the Commission for the purposes of recovering undue payments to co-contracting parties in the context of aid or financing programmes. ( 32 ) In all those decisions, ( 33 ) the General Court takes the view, in very general terms, that the debit notes in question are inseparable from the contractual context in which they are adopted, and that, consequently, they are not open to challenge by an action for annulment.

49. However, the Court has as yet never had the opportunity to examine this case-law and its main propositions, and it is that fact that provides ample justification for the Court to examine it in detail and for it to give a ruling, more specifically, on the reasoning subsequent to which and on the criteria on the basis of which the General Court could find to be non-actionable, on the basis of Article 263 TFEU, acts exhibiting the characteristics and having the content of the contested debit note.

50. By the contested debit note, the Commission required the appellant to repay the sums that the Commission considered had been unduly paid to the appellant in the context of the WIH project and fixed a deadline from which those sums would begin to bear interest. Furthermore, the debit note purported to be enforceable to the extent that it threatened the appellant with enforcement pursuant to Article 299 TFEU. ( 34 ) It is precisely those factors which were relied upon by the appellant with a view to demonstrating that the contested debit note was an act open to challenge.

51. It must, in this regard, be borne in mind that, as the Court has repeatedly held, an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects ( 35 ) and, more specifically, binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position. ( 36 )

52. In order to determine whether an act is covered by the provisions of Article 263 TFEU, it is necessary, therefore, to look to its substance, to its very essence so to speak. By contrast, the nature, the form and the basis on which, the procedure under which or even the context in which an act was adopted are, in principle, immaterial as regards its classification as an act open to challenge by an action for annulment. ( 37 )

53. It is important to emphasise in this regard that that consistent approach adopted by the Court is necessitated by the need to guarantee effective judicial protection of individual interests from acts adopted by the institutions, ( 38 ) since the justiciability of such acts lies at the very heart of the idea of a European Union based on the rule of law. ( 39 )

54. However, it was not on consideration of its substance, that is to say the effects that it intended to produce, that the General Court held that the contested debit note did not constitute an act open to challenge, but solely on consideration of its subject-matter, ( 40 ) the context in which it had been issued and the content of the contractual term under which or on the basis of which it had been adopted. ( 41 )

55. Indeed, the General Court began by explaining, ( 42 ) firstly, that the power of the European Union judicature to review the legality of the acts of the institutions, bodies, offices and agencies of the European Union related ‘only to the acts referred to in Article 288 TFEU’, a clarification which is formally at odds with the case-law of the Court, ( 43 ) and in so far as those acts were adopted ‘subject to the conditions provided for in the FEU Treaty’ and ‘by exercising the powers which they hold as public authorities’, clarifications which are alien to the case-law of the Court.

56. The General Court added, ( 44 ) secondly, that the acts adopted by the institutions falling within a purely contractual context from which they are inseparable ‘do not, by reason of their very nature, number amongst the acts referred to in Article 288 TFEU, the annulment of which may be sought pursuant to Article 263 TFEU’.

57. This is a further statement which is at odds with the case-law of the Court, ( 45 ) which has repeatedly held that it is not the nature of the act challenged that matters, but rather its substance and the effects that it aims to produce vis-à-vis third parties.

58. Above all, it must be observed that that statement, adopted as the premiss of the line of reasoning followed by the General Court, is likewise its conclusion, and that the General Court fails to clarify how the contested debit note is inseparable from its contractual context or, a fortiori, what the criteria for separability would be.

59. Those two elements combined ultimately lead the General Court to ‘redefine’ the concept of an ‘act open to challenge’, as laid down in paragraph 24 of the judgment under appeal.

60. Indeed, the General Court explains that an action for annulment brought against an act such as the contested debit note may be declared admissible only in so far as that act aims to produce binding legal effects extending beyond those arising from the contract and involves the exercise of powers as a public authority conferred on the Commission in its capacity as an administrative authority.

61. It takes the view that this is not the case here for three reasons. The first is that the payment of the contested sums paid was made ‘on the basis of the contract’. The second is that the request for reimbursement of the undue payments constitutes a right provided for in Article 19(1) of the general conditions. The third and final reason is that, by its very wording, the contested debit note required the reimbursement of the undue payments ‘pursuant to Article 19 of the general conditions’. The General Court concludes from this that the purpose of the contested debit note was to enforce rights which the Commission derived from the provisions of the contract, and that it did not aim to produce legal effects which have their origin in the exercise of powers of a public authority held by that institution in accordance with EU law.

62. It is merely by way of allusion that the General Court mentions, in paragraph 29 of the judgment under appeal, the fact that the contested debit note purported to be enforceable, in so far as it referred to Article 299 TFEU. In that connection, it finds merely that the statements contained in the debit note under the heading ‘Conditions of payment’ cannot, despite their ambiguous nature, lead to the contested debit note being classified as a ‘definitive act’.

63. It is important to point out that that clarification, which is a reference — as muted as it is clear — to the IBM case-law, ( 46 ) pursuant to which preparatory acts are not open to challenge, is difficult to understand since there is no link between that case-law and the preceding explanations.

64. However, more significantly, the General Court in fact refused to examine whether, by its very substance, as set out above, and in particular the threat of enforcement, the contested debit note ought not to be regarded as being capable of producing independent legal effects and, as such and on the basis of that fact alone, as being separable from its contractual context and therefore open to challenge by an action for annulment on the basis of Article 263 TFEU.

65. The General Court thus found that the contested debit note was not open to challenge because it was not separable from its contractual context, whereas — in view of its substance and in particular the fact that it purported to be enforceable — it should have held that it was separable from its contractual context and therefore open to challenge.

66. Indeed, it must be stated that, by addressing to the appellant a debit note purporting to be enforceable, the Commission behaved not as a co-contracting party but rather as an administrative authority exercising its powers as a public authority for the purposes of obtaining payment of sums which it was seeking to recover.

67. The fact that the adoption of such an enforceable decision is specifically provided for in Article 19(5) of the general conditions cannot call into question the conclusion that the contested debit note must be regarded as an act open to challenge. Indeed, unless the view is taken that the Commission may be both judge and party in the context of the enforcement of the contract at issue, the judicial protection of its co-contracting party requires that a right to bring an action for annulment corresponds to the ‘privileged status’ thus afforded to it.

68. It is therefore my view that the General Court departed from the settled case-law of the Court of Justice and erred in law by finding that the contested debit note did not produce legal effects. The first plea in law raised by the appellant is therefore well founded and, for that reason, the judgment under appeal must be set aside.

B – The consequences of the judgment of the General Court being set aside

69. Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court may either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

70. In view of the fact that the General Court declared the action for annulment of the contested debit note brought by the appellant to be inadmissible, it did not examine either the pleas or the substantive arguments which the appellant had advanced in support of that action, meaning that the case should be referred back to it for judgment on those pleas and arguments.

71. As I have already made clear in the foregoing, ( 47 ) the conclusion which I have reached entails the judgment under appeal being set aside in its entirety, hence also in so far as the General Court, in its capacity as the court hearing a contractual dispute, finds the Commission’s counterclaim to be admissible and well founded.

72. In those circumstances, it is not necessary to rule on the other pleas raised in the appeal, all of which dispute — in general terms — the General Court’s assessment of the merits of the Commission’s counterclaim.

73. Nevertheless, given the particular circumstances of the present case and in the event that the Court were not to concur with my main conclusion, I consider it appropriate to provide it with a comprehensive presentation of the present case and, therefore, an analysis of the other nine pleas in law advanced by the appellant. ( 48 )

VI – The assessment of the merits of the counterclaim

74. By its second, fifth and seventh pleas in law, the appellant disputes, in essence, the General Court’s assessment of the evidence which it adduced in support of the form of order sought by it, namely the dismissal of the Commission’s counterclaim as unfounded. More specifically, the General Court is alleged to have incorrectly applied the concept of an ‘undue payment’ (second plea in law). In addition, it erred in its assessment of the legal nature of the time sheets (fifth plea in law) and of the methods for the calculation of costs (cost models) (seventh plea in law).

75. By its third and sixth pleas in law, the appellant complains, in essence, of the General Court’s infringement of the legal requirements of a fair hearing, since it failed to take account of some of the arguments put forward by the appellant and disregarded the principles of the protection of the rights of defence and of equality of arms.

76. By its eighth plea in law, the appellant submits that the General Court erred in its assessment of the misuse of powers for which the Commission is responsible.

77. By its ninth plea in law, it criticises the General Court’s dismissal of a plea advanced by it alleging an inadequate statement of reasons for the contested debit note.

78. Finally, its 10th plea in law alleges that the General Court erred in law in the assessment of its plea alleging infringement of the principle of the protection of legitimate expectations.

79. For its part, the Commission takes the view that all the pleas raised must be dismissed as inadmissible, since the appellant is seeking, in general terms, a review of the merits of the case by simply reproducing the pleas in law and arguments advanced before the General Court, without specifically identifying the rules of law that the General Court has infringed or even stating the precise grounds of the judgment under appeal which it criticises. The Commission nevertheless analyses the substance of the various pleas in law ( 49 ) to conclude that they should, in any event, be dismissed as unfounded.

A – The errors committed by the General Court in its assessment of the evidence of the unfounded nature of the counterclaim (second, fifth and seventh pleas in law)

1. The second plea in law, alleging distortion of the legal concept of an ‘undue payment’

80. In the context of its second plea in law, the appellant submits that the General Court distorted the legal concept of an ‘undue payment’ within the meaning of Paragraph 1376 of the Belgian Civil Code by finding, in paragraphs 26 and 47 to 69 of the judgment under appeal, that the Commission had unduly paid the sum of EUR 83001.09 to the appellant. The appellant takes the view, firstly, that, under that provision, that sum should have been held to be undue on the date on which it was received. It is of the opinion, secondly, that, in order for the conditions laid down in that provision to be satisfied, an undue payment must be made either intentionally or by error.

81. In addition, it has not been proven that the time sheets were not produced during the project implementation period, the only relevant period for the purposes of assessing the undue nature of the payment at issue.

82. The arguments advanced in those terms by the appellant cannot succeed.

83. Indeed, the General Court held first of all that the appellant had failed to call into question the findings made in the context of the final audit report, on the basis of which the Commission took the view that the staff expenditure recognised in relation to the WIH project was not eligible with the meaning of Articles 13(1) and 14(1)(a) of the general conditions. ( 50 ) In this case, that report concluded that the appellant had failed to fulfil its obligations under Article 14(1)(a) of the general conditions to record and certify, at least once a month, all the working hours booked under the contract.

84. The related expenditure was therefore declared ineligible and rejected by the Commission.

85. Furthermore, it is clear from paragraph 56 of the judgment under appeal that the General Court nevertheless examined the time sheets provided by the appellant following the audit, on 13 November 2009, and held that those time sheets could not be used as evidence confirming the hours worked in connection with the WIH project because they are not dated or certified by one of the persons referred to in Article 14(1)(a) of the general conditions.

86. By so doing, the General Court, in the exercise of its exclusive jurisdiction, assessed the facts and evidence produced by the appellant with a view to demonstrating that the Commission had wrongly declared to be ineligible the sums in respect of which reimbursement was sought.

87. However, the appellant failed to adduce any evidence capable of proving that, in so doing, the General Court distorted that evidence.

88. Accordingly, pursuant to Article 256(1) TFEU and Article 58(1) of the Statute of the Court, and in accordance with the consistent case-law of the Court, ( 51 ) the second plea in law raised by the appellant must be dismissed as inadmissible.

2. The fifth plea in law, alleging an error in the assessment of the nature of the time sheets

89. By its fifth plea in law, the appellant submits that the General Court erred in law in its assessment of the nature of the time sheets and of the scope of the appellant’s periodic reporting obligations. The appellant points out that those periodic reports, which must record every unit of working time provided by the subsidised programme in relation to each employee, make it possible, firstly, to record the work provided and, secondly, to form an objectively measurable basis of evaluation to justify the operating costs. It thus takes the view, in essence, that the inadequate production of periodic reports cannot, in view of their objective, be equated with the failure to provide any work, without this being manifestly disproportionate. The appellant adds that the concept of a periodic report is defined neither in legislation nor in case-law, such that its specific content should be determined in concreto having regard to the circumstances of the present case.

90. It must be pointed out, first of all, that the appellant reproduces, in essence, the line of argument which it advanced at first instance, as is clear inter alia from paragraph 43 of the judgment under appeal.

91. In any event, it should be borne in mind that, in paragraph 59 of the judgment under appeal, the General Court found that the periodic reports in question contained only an overall quarterly statement of the hours recognised by the appellant under each section of the project and not a monthly breakdown, by employee, of the hours devoted to the project. It therefore held that those reports did not satisfy the formal requirements laid down in the third subparagraph of Article 14(1)(a) of the general conditions, and that, in any event, they were incapable of replacing the time sheets from a substantive point of view.

92. By so doing, the General Court, in the exercise of its exclusive jurisdiction, assessed the facts and evidence produced by the appellant with a view to demonstrating that the Commission had wrongly declared to be ineligible the sums in respect of which reimbursement was sought.

93. Since the appellant failed to adduce any evidence capable of proving that the General Court distorted that evidence, its fifth plea in law must therefore likewise be dismissed as inadmissible pursuant to Article 256(1) TFEU and Article 58(1) of the Statute of the Court.

3. The seventh plea in law, alleging an error in the assessment of the legal nature of the methods for the calculation of costs

94. By its seventh plea in law, the appellant submits that the General Court erred in law in its assessment of the legal nature of the methods for the calculation of costs (‘cost models’).

95. This plea in law must be dismissed as manifestly inadmissible.

96. Indeed, firstly, the appellant does not state which point of the grounds for the judgment under appeal it criticises. Secondly, the appellant fails to explain, in this regard, how the General Court erred in law.

97. Those omissions can, however, be explained by the fact that the General Court did not rule on this point in its assessment of the Commission’s counterclaim.

98. Indeed, it is clear from paragraph 42 of the judgment under appeal that the Commission’s counterclaim was based, firstly, on the appellant’s failure to comply with its ‘obligation, laid down in Article 14(1)(a) of the general conditions, to keep time sheets and to record the hours spent working on the project by its staff’ and, secondly, on the fact that the appellant had ‘wrongly taken the “total costs method” as the basis for the calculation of the indirect costs imputed to the WIH project’.

99. However, it is apparent from the judgment under appeal (paragraphs 47 to 64) that the General Court found the counterclaim to be well founded after holding that the Commission had rightly concluded that the staff expenditure imputed to the project by the appellant did not constitute eligible costs within the meaning of Article 13(1) of the general conditions. It did not, however, examine the second plea relied on by the Commission.

100. The seventh plea in law raised by the appellant must, therefore, be dismissed as being ineffective in any event.

B – The plea in law alleging an error of assessment committed by the General Court in its examination of the misuse of powers committed by the Commission (eighth plea in law)

101. In the context of its eighth plea in law, the appellant submits, in essence, that the Commission’s conduct is abusive in so far as it demanded the repayment of the contested sums on the sole ground that it had not provided the time sheets required within the deadlines stipulated, even though the appellant’s employees were involved in the WIH project. The submission of those time sheets cannot be treated as an essential obligation under the contract, the object of which consists in supplying the project deliverables; those deliverables were supplied and this demonstrates that the appellant’s staff were indeed involved in the project. The Commission thus improperly equated the failure to submit the time sheets with the failure to supply the deliverables. The General Court therefore erred in law by rejecting the argument advanced by the appellant alleging a misuse of powers.

102. The Commission explains that, in the case of contracts relating to programmes in receipt of financial assistance, the beneficiary is legally obliged to register and declare its costs. The obligation thus imposed on the beneficiary to provide proof of the eligibility of its costs is wholly unrelated to the obligation to perform or deliver the project.

103. The Commission adds that it has never doubted that the WIH project was properly implemented, but rather simply drew conclusions from the contractual breaches committed by the appellant, who has failed to establish conclusively the working hours actually devoted to the WIH project by the appellant’s staff.

104. Even assuming that it is capable of succeeding in the context of a contractual dispute, ( 52 ) I am of the view that this eighth plea in law must be dismissed as manifestly inadmissible. Indeed, the appellant simply claims that there was a misuse of powers without specifying the constituent elements of that misuse of powers or producing the slightest evidence that the Commission acted with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. ( 53 )

C – The General Court’s failure to have regard to the requirements of the right to a fair hearing (third and sixth pleas in law)

1. Arguments of the parties

105. By its third plea in law, the appellant submits that, by finding in paragraphs 73 to 77 of the judgment under appeal that the Commission was entitled to demand from the appellant the repayment of the sum of EUR 83001.09 plus default interest calculated on the basis of a rate of 5% with effect from 25 October 2011, the General Court failed to take account of the arguments advanced by the appellant, thus infringing the appellant’s right to a fair hearing, as guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the general principles of EU law.

106. Indeed, in response to the questions put by the General Court for the purpose of the hearing, the appellant submitted that, since the contested debit note was presented as and understood to be a preparatory act, that is to say a contractual document of an informative nature incapable of bringing about a distinct change in the appellant’s legal position, the starting point for the accrual of the default interest claimed from the appellant could not lawfully be fixed on expiry of the date stated in that debit note, that is 25 October 2011 in the present case. In addition, that argument was not examined by the General Court, which failed to assess the legality of the change to the appellant’s legal position brought about by the mere notification of the debit note.

107. In the context of its sixth plea in law, the appellant claims that the General Court infringed its right to a fair hearing, and more specifically its rights of defence and the principle of the equality of arms, by finding, firstly, in paragraph 56 of the judgment under appeal, that the time sheets submitted by the appellant did not satisfy the requirements laid down in the contract and could not be accepted as evidence of the hours worked in connection with the WIH project, and, secondly, in paragraph 63 of the judgment under appeal, that the correspondence produced by the appellant was incapable of proving the working hours actually devoted to that project by its employees. In so finding, the General Court deprived the appellant of all means of proof, with manifest disregard for the principle of the equality of arms.

108. The appellant adds that the contract that it concluded with the Commission is abusive in so far as it places disproportionate restrictions on the means of proving the actual participation of its personnel in the WIH project.

109. It further submits that, in a situation such as that at issue here, in which the Commission unilaterally finds, by means of an audit, that there has been a failure to comply with contractual obligations and subsequently brings a counterclaim for the purposes of recovering the undue payments, the Commission occupies the role of judge and party and enjoys an advantage which constitutes a breach of the principle of the equality of arms.

110. The Commission takes the view that the third plea in law raised by the appellant must be dismissed as wholly unfounded. Firstly, in the context of measures of organisation of procedure, the General Court put to the parties a specific question concerning the rate of interest sought in the context of the counterclaim, thus providing it with the opportunity to give a ruling in that regard. Secondly, the delay in payment and the calculation of the default interest are not necessarily connected to the enforceable nature of the debit note.

111. The Commission is of the opinion that the sixth plea in law must likewise be dismissed as unfounded. In that regard, it points out that, from the very outset, the appellant was aware of all the provisions of the contract, and in particular the provisions relating to financial conditions. The infringement by the appellant of a number of contractual provisions cannot render those conditions abusive or disproportionate.

2. Assessment

a) The third plea in law

112. It is clear from the judgment under appeal that the General Court held, in this case, that the Commission was entitled to the payment of default interest with effect from 25 October 2011, ( 54 ) having found that, under Article 19(2) of the general conditions, in the event of failure to repay the undue sums on the date fixed by the Commission, the amount due would bear interest at the rate provided for in Article 3(6) of those conditions. ( 55 )

113. By so finding, the General Court purely and simply enforced the requirements laid down in Article 19(2) in conjunction with Article 3(6) of the general conditions, drawing conclusions from its assessment to the effect, firstly, that the dispute between the parties was of a contractual nature and, secondly, that the Commission’s claim for repayment was well founded.

114. The fact that the General Court did not formally take a view on the arguments advanced by the appellant cannot, in those circumstances, be regarded as constituting an infringement of the appellant’s right to a fair hearing.

115. Indeed, the criticism of the General Court made by the appellant in the context of the latter’s third plea in law is that the General Court failed to take account of its argument to the effect that the contested debit note could not both determine the start date for the accrual of default interest, thus bringing about a change to the appellant’s legal position, and also be presented by the Commission as a purely preparatory act. The appellant thus disputes the failure to take into account the link which it deems must be established between the challengeable nature of the debit note and the determination of default interest. However, at no point, either in its initial application, or in its reply, or in its answers to the written questions put by the General Court, did the appellant formally question the validity of the contractual provisions applied in the present case.

116. In view of those circumstances, the third plea in law raised by the appellant can only be dismissed as unfounded.

b) The sixth plea in law

117. The sixth plea in law raised by the appellant must likewise be dismissed as manifestly unfounded in the present case.

118. Indeed, it is clear from the judgment under appeal that the General Court examined not only the time sheets produced by the appellant on 13 November 2009 ( 56 ) and the periodic reports which it had sent to the Commission, ( 57 ) but also the 3656 pages of electronic correspondence which it had produced with a view to providing concrete proof of some of the time devoted to the project by its employees. ( 58 ) The General Court concluded from this that those various items of evidence were incapable of calling into question the findings made in the context of the final audit report.

119. It follows that, far from having deprived the appellant of all means of proof, the General Court did, on the contrary, scrupulously seek to examine the arguments which the appellant had put forward and the evidence which it had adduced in that regard.

120. It should be added that the appellant is in fact contesting the General Court’s assessment of that evidence. In addition, as has already been recalled, the appraisal of the facts and the assessment of the evidence do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal.

121. Finally, the appellant cannot complain, in the context of the assessment of the Commission’s counterclaim, that the General Court did not find the contract to be abusive, since the validity of that contract was not in fact contested.

D – The error committed in the assessment of an inadequate statement of reasons for the debit note (ninth plea in law)

122. In the context of its ninth plea in law, the appellant submits that the General Court erred in law by rejecting the argument advanced by it at first instance regarding an inadequate statement of reasons for the contested debit note. The appellant states in that regard that the contested debit note does not contain any statement of reasons on the basis of which it is possible to verify the calculations made, since the reference made by the Commission to its letters of 24 May 2011 and 17 August 2011 cannot be regarded as a sufficient statement of reasons.

123. The Commission asserts in reply that, in the context of the procedure preceding the issue of the contested debit note, a procedure opened by the Commission’s letter of 20 October 2009, and in particular in its letters of 24 May 2011 and 17 August 2011, mentioned in paragraph 26 of the judgment under appeal and in the audit report, it provided explanations of the factual context and the reasons justifying its decision. The Commission points out that, in any event, the General Court held, in paragraph 29 of the judgment under appeal, that the contested debit note was not a definitive act, and therefore refers to the arguments advanced in its response to the first plea in law.

124. It must be observed, in this regard, that, by that ninth plea in law, the appellant in essence criticises the General Court for having failed to rule on the second plea raised by it at first instance before the General Court, in the context of its action for annulment of the contested debit note.

125. In addition, since the action for annulment brought by the appellant against the contested debit note was dismissed as inadmissible, it must in fact be observed that the General Court did not examine that plea nor did it formally rule on the statement of grounds for the contested debit note in the context of its examination of the merits of the Commission’s counterclaim.

126. It is, however, clear from the judgment under appeal ( 59 ) that the General Court examined the calculation of the sum of EUR 83001.09, claimed from the appellant, on the basis of the information provided by the Commission, information which — I would point out — has not been contested.

127. It is likewise apparent from the judgment under appeal ( 60 ) that the General Court examined whether the Commission had specified the ‘conditions of repayment and the date of payment’ of the sums claimed from the appellant. The General Court held that that was the case here, referring in that regard, firstly, to the letter of 24 May 2011 and, secondly, to the information provided by the contested debit note under the heading ‘Conditions of payment’.

128. In those circumstances, the ninth plea in law raised by the appellant can only be dismissed as manifestly unfounded.

E – The infringement of the principle of the protection of legitimate expectations (10th plea in law)

129. By its 10th plea in law, the appellant submits that, five years after the closure of the programme, the sum corresponding to the final instalment of the programme has still not been paid to it, even though it is not contested that that instalment has been performed or that the related quarterly reports have been accepted. In so doing, the Commission disregarded the principle of the protection of legitimate expectations, and the judgment of the General Court should likewise be set aside for that reason.

130. It must be stated that although, by that plea in law, the appellant complains of an infringement by the Commission of the principle of the protection of legitimate expectations, it fails to state how the General Court in fact disregarded that principle. Accordingly, from that point of view and for that reason, that 10th plea in law should be dismissed as manifestly inadmissible.

131. It must, however, be observed that that 10th plea in law reproduces the fifth plea, which the appellant raised at first instance in the context of its action for annulment and on which the General Court has therefore not ruled. Nevertheless, it must be stated that the claim made in that plea in law, even though it relates to the performance of the contract at issue in the present case, does not relate stricto sensu to the subject of the contested debit note and, therefore, to the dispute.

132. The 10th plea in law must therefore be dismissed as manifestly inadmissible.

133. In the light of the foregoing considerations, and in the event that the Court were not to concur with my main conclusion, I take the view that appellant’s appeal must be dismissed.

VII – Costs

134. Since it is proposed, primarily, that the Court set aside the judgment under appeal and refer the case back to the General Court, it is likewise proposed, primarily, that the costs relating to the present appeal be reserved.

135. However, in the event that the Court were not to concur with my main conclusion and were to decide to dismiss the appeal, the appellant should then be ordered to pay all the costs, pursuant to Article 184(1) in conjunction with Article 138(1) of the Rules of Procedure of the Court.

VIII – Conclusion

136. In the light of all the foregoing considerations, I propose, primarily, that the Court should: (1) Set aside the judgment of the General Court of the European Union in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (T‑552/11, EU:T:2013:349) in so far as it declares inadmissible the action for annulment brought by the appellant against the debit note issued by the European Commission on 9 September 2011 and requiring the appellant to repay the sum of EUR 83001.09 by 24 October 2011. (2) Refer the case back to the General Court of the European Union for a ruling on the merits of the action. (3) Reserve the costs.

137. In the alternative, I propose that the Court should: (1) Dismiss the appeal. (2) Order Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro AE to pay the costs.

( 1 ) Original language: French.

( 2 ) T‑552/11, EU:T:2013:349 (the ‘judgment under appeal’).

(

)

‘Lito Maieftiko.’

( 4 ) See, in particular, in relation to French administrative law, Wachsmann, P., ‘La recevabilité du recours pour excès de pouvoir à l’encontre des contrats — Pour le centenaire de l’arrêt Martin’, Revue française de droit administratif, No 1, 2006, p. 24.

( 5 ) The ‘WIH project’.

( 6 ) The ‘general conditions’.

( 7 ) The ‘contested debit note’.

( 8 ) T‑552/11 R, EU:T:2011:749.

( 9 ) T‑353/10, EU:T:2011:589.

( 10 ) C‑506/13 P-R, EU:C:2013:882.

( 11 ) See, inter alia, judgment in Lecureur v Commission (T‑26/00, EU:T:2001:222, paragraph 38); orders in Musée Grévin v Commission (T‑314/03 and T‑378/03, EU:T:2004:139, paragraph 88), and Helm Düngemittel v Commission (T‑265/03, EU:T:2005:213, paragraphs 54 to 57); judgment in CEVA v Commission (T‑428/07 and T‑455/07, EU:T:2010:240, paragraphs 57 to 64); orders in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (EU:T:2011:589, paragraphs 34 and 35); Technion and Technion Research & Development Foundation v Commission (T‑546/11, EU:T:2012:303, paragraphs 58 and 59); and Technion and Technion Research & Development Foundation v Commission (T‑657/11, EU:T:2012:411, paragraphs 54 to 60); judgments in GRP Security v Court of Auditors (T‑87/11, EU:T:2013:161, paragraphs 31 to 38) and Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraphs 42 to 44). For a refusal to reclassify a contractual remedy as an action for annulment because such an action is time-barred, see judgment in Helkon Media v Commission (T‑122/06, EU:T:2008:418, paragraph 54).

( 12 ) See paragraph 84 of the reply.

( 13 ) Paragraph 40 of the judgment under appeal.

( 14 ) See paragraph 39 of the judgment under appeal.

( 15 ) C‑517/03, EU:C:2004:326, paragraph 17.

( 16 ) It is true that a counterclaim brought in a contractual context is not unheard of in the context of EU law, since the Court of Justice has expressly allowed such claims; see judgments in Commission v Zoubek (426/85, EU:C:1986:501, paragraph 12), and IDE v Commission (C‑114/94, EU:C:1997:68, paragraphs 82 and 83). However, I have been unable to find any precedent mirroring the circumstances of the present case, in which a counterclaim brought in the context of an action for annulment is examined and allowed, whereas the action for annulment to which it is connected has been declared inadmissible.

( 17 ) EU:T:2011:589.

( 18 ) Paragraph 21 of the judgment under appeal.

( 19 ) Paragraph 22 of the judgment under appeal.

( 20 ) Paragraph 23 of the judgment under appeal.

( 21 ) Paragraph 24 of the judgment under appeal.

( 22 ) Paragraphs 25 and 26 of the judgment under appeal.

( 23 ) Paragraph 28 of the judgment under appeal.

( 24 ) Paragraph 29 of the judgment under appeal.

( 25 ) The Commission refers to the order in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (EU:T:2011:589).

( 26 ) Judgment in Geotronics v Commission (C‑395/95 P, EU:C:1997:210).

( 27 ) See, inter alia, order in An Taisce and WWF UK v Commission (C‑325/94 P, EU:C:1996:293, paragraph 30) and judgment in Parliament v Ripa di Meana and Others (C‑470/00 P, EU:C:2004:241, paragraph 41).

( 28 ) Paragraph 30 of the judgment under appeal.

( 29 ) Order in Musée Grévin v Commission (EU:T:2004:139, paragraphs 61 to 89).

( 30 ) For decisions dismissing as inadmissible actions for annulment brought against debit notes relying on an identical or very similar statement of grounds, see order in Austrian Relief Program v Commission (T‑235/06, EU:T:2008:411, paragraphs 34 to 38); judgments in ArchiMEDES v Commission (T‑396/05 and T‑397/05, EU:T:2009:184, paragraphs 53 to 58), and CEVA v Commission (EU:T:2010:240, paragraphs 51 to 55); orders in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (EU:T:2011:589, paragraphs 22 to 32); Groupement Adriano, Jaime Ribeiro, Conduril v Commission (T‑335/09, EU:T:2011:614, paragraphs 22 to 36); and Technion and Technion Research & Development Foundation v Commission (EU:T:2012:303, paragraphs 30 to 55).

( 31 ) For decisions dismissing as inadmissible actions for annulment brought against debit notes but departing from the statement of grounds initially adopted, see order in Imelios v Commission (T‑97/07, EU:T:2008:105, paragraphs 23 to 30); judgment in Cestas v Commission (T‑260/04, EU:T:2008:115, paragraphs 67 to 77); orders in CPEM v Commission (T‑106/08, EU:T:2009:228, paragraphs 25 to 37); Alisei v Commission (T‑481/08, EU:T:2010:32, paragraph 72); and IEM v Commission (T‑435/10, EU:T:2011:410, paragraphs 26, 30 and 31); judgments in CEVA v Commission (T‑285/09, EU:T:2011:479, paragraphs 45 to 48), and EMA v Commission (T‑116/11, EU:T:2013:634, paragraphs 72 to 75); and order in Hungary v Commission (T‑37/11, EU:T:2012:310, paragraphs 35 to 43).

( 32 ) For cases of application of this case-law following the delivery of the judgment under appeal, see order in Evropaïki Dynamiki v Commission (T‑554/11, EU:T:2013:548, paragraphs 30 and 41); and judgments in EMA v Commission (T‑116/11, EU:T:2013:634, paragraphs 71 to 75), and Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraphs 29 to 35).

( 33 ) For a decision to the opposite effect, see judgment in Applied Microengineering v Commission (T‑387/09, EU:T:2012:501, paragraphs 36 to 52). The General Court has also had occasion to dismiss an action on its merits, without examining its admissibility, in accordance with the ‘Boehringer’ case-law (judgment in Council v Boehringer (C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52)); see judgment in Berliner Institut für Vergleichende Sozialforschung v Commission (T‑73/08, EU:T:2013:433, paragraphs 47 and 48).

( 34 ) See points 14 and 15 of this Opinion.

( 35 ) See judgment in Commission v Council (22/70, EU:C:1971:32, paragraph 42).

( 36 ) See, inter alia, judgments in IBM v Commission (60/81, EU:C:1981:264, paragraph 9), and Internationaler Hilfsfonds v Commission (C‑362/08 P, EU:C:2010:40, paragraph 29); and order in Mauerhofer v Commission (C‑433/10 P, EU:C:2011:204, paragraph 57).

( 37 ) See, inter alia, judgment in IBM v Commission (EU:C:1981:264, paragraph 9), and order in Mauerhofer v Commission (EU:C:2011:204, paragraph 58).

( 38 ) See, inter alia, judgment in Les Verts v Parliament (294/83, EU:C:1986:166, paragraphs 24 to 27).

( 39 ) See, inter alia, judgments in Weber v Parliament (C‑314/91, EU:C:1993:109, paragraphs 8 to 12), and Unión de Pequeños Agricultores v Council (C‑50/00 P, EU:C:2002:462, paragraph 38).

( 40 ) Paragraph 25 of the judgment under appeal.

( 41 ) Paragraph 26 of the judgment under appeal.

( 42 ) Paragraph 22 of the judgment under appeal.

( 43 ) See judgments in Commission v Council (22/70, EU:C:1971:32, paragraph 41), and IBM v Commission (EU:C:1981:264, paragraph 9).

( 44 ) Paragraph 23 of the judgment under appeal.

( 45 ) Judgment in IBM v Commission (EU:C:1981:264, paragraph 9).

( 46 ) EU:C:1981:264, paragraph 9.

( 47 ) See point 29 of this Opinion.

( 48 ) However, it may be observed in this regard that the Court of Justice could indeed uphold the analysis of the General Court to the effect that the contested debit note was inseparable from its contractual context but could also distance itself from that analysis and find, by means of a substitution of grounds, that the disputes between the parties to a contract relating to the enforcement of that contract fall exclusively within the jurisdiction of the court hearing the contractual dispute, thus establishing the existence of a genuine parallel remedy under EU law.

( 49 ) In this regard, it proposes that the second, fourth, fifth, sixth and eighth pleas in law be examined jointly.

( 50 ) See, in particular, paragraph 54 of the judgment under appeal.

( 51 ) See, inter alia, by analogy, judgments in Hilti v Commission (C‑53/92 P, EU:C:1994:77, paragraph 10), and Ismeri Europa v Court of Auditors (C‑315/99 P, EU:C:2001:391, paragraph 19), as well as the order in CPVO v Schräder (C‑38/09 P-DEP, EU:C:2013:679, paragraphs 69 to 75).

( 52 ) As the Court has held, the concept of ‘misuse of powers’ has a precise scope and refers to the use of powers by an administrative authority for a purpose other than that for which they were conferred on it; see, inter alia, judgment in O’Hannrachain v Parliament (C‑121/01 P, EU:C:2003:323, paragraph 46).

( 53 ) To use the wording of the definition of a misuse of powers traditionally used by the Court. See, inter alia, judgments in Netherlands v Council (C‑110/97, EU:C:2001:620); O’Hannrachain v Parliament (EU:C:2003:323, paragraph 46); Windpark Groothusen v Commission (C‑48/96 P, EU:C:1998:223, paragraph 52); and Ramondín and Others v Commission (C‑186/02 P and C‑188/02 P, EU:C:2004:702, paragraph 44).

( 54 ) See paragraph 77 of the judgment under appeal.

( 55 ) See paragraphs 75 and 76 of the judgment under appeal.

( 56 ) Paragraph 56 of the judgment under appeal.

( 57 ) Paragraph 59 of the judgment under appeal.

( 58 ) Paragraphs 60 and 61 of the judgment under appeal.

( 59 ) See paragraphs 65 to 69.

( 60 ) See paragraphs 46 and 70 to 72.