Judgment of the General Court (Eighth Chamber) of 10 October 2019 –

Help — Hilfe zur Selbsthilfe v Commission

(Case T‑335/17)

(Arbitration clause — Food security programme for very food insecure farming households in Zimbabwe (ECHO/ZWE/BUD/2009/02002) — Reclassification of the action — Audit reports — Audit report of the Court of Auditors — OLAF Report — Reimbursement of the sums paid — Proportionality — Legitimate expectations)

1. Judicial proceedings — Legal basis of an action — Choice for the applicant and not the EU judicature (see para. 66)

2. Action for annulment — Action relating in reality to a contractual dispute — Annulment of a Commission decision to recover funding and of a debit note issued by that institution — No jurisdiction of the EU judicature — Inadmissibility (Arts 263 and 272 TFEU) (see paras 68, 72-76)

3. Action for annulment — Action relating in reality to a contractual dispute — Reclassification of the action — Conditions (Art. 272 TFEU; Rules of Procedure of the General Court, Art. 76(d)) (see paras 78, 80)

4. Judicial proceedings — General Court seised under an arbitration clause — Arbitration clause — Concept (Art. 272 TFEU) (see paras 88-91)

5. EU budget — EU financial assistance — Obligation on the beneficiary to comply with the conditions for grant of the assistance (Art. 317 TFEU) (see para. 159)

6. Judicial proceedings — General Court seised under an arbitration clause — Framework partnership agreement with a humanitarian organisation — Breaches committed by the co-contractor — Request for repayment of the financial contribution paid — Threshold of seriousness of the breach of the contractual provision in question — None — No criminal offence — Irrelevant — Commission’s right to repayment of the aid granted (Art. 272 TFEU) (see paras 183, 184, 186)

7. EU law — Principles — Proportionality — Scope — Compliance by the EU institutions in connection with measures forming part of a contractual context — Obligation on the parties to a contract to perform it in good faith (Art. 5(4) TEU) (see para 198)

8. EU budget — EU financial assistance — Obligation on the beneficiary to comply with the conditions for grant of the assistance — Financing covering only expenses actually incurred — Demonstration that the costs have actually been incurred — None — Ineligible costs (Art. 317 TFEU) (see paras 200, 201)

9. EU law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities (Art. 263 TFEU) (see para. 211)

10. Judicial proceedings — General Court seised under an arbitration clause — Framework partnership agreement with a humanitarian organisation — Irregularities committed by the co-contractor — Action for contractual liability — Invocation of the principle of the protection of legitimate expectations — Not permissible (Art. 272 TFEU) (see paras 211-213)

Re:

First, application under Article 263 TFEU seeking annulment of Commission decision Ares(2017)1515573 of 21 March 2017 by which a partial amount of the funding for the assistance project ECHO/ZWE/BUD/2009/02002 was to be recovered, as well as the payment request based thereupon and, second, application under Article 272 TFEU seeking an order that the Commission reimburse the sum of EUR 643 627.72 paid by the applicant to the Commission, in accordance with the decision of 21 March 2017 and the payment requests of 7 April and 5 September 2017.

Operative part

The Court:

1. Dismisses the action;