Judgment of the General Court (First Chamber) of 25 September 2018 –

GABO:mi v Commission

(Case T‑10/16)

(Arbitration clause — Sixth and seventh framework programmes for research, technological development and demonstration activities (2002-2006 and 2007-2013) — Letters requesting reimbursement of part of the grants awarded — Debit note — Setting off of claims — Amendment of application — Admissibility — Eligibility of expenses — Funds held in trust — Duty to record costs in contractor’s accounts — Compliance with accounting rules in the State in which the contractor is established — Legal certainty — Legitimate expectations — Good governance — Transparency — Right to be heard — Proportionality)

1. Actions for annulment — Action relating in reality to a contractual dispute — Annulment of a debit note issued by the Commission — No jurisdiction of the EU judicature — Inadmissibility (Arts 263 TFEU and 272 TFEU) (see paras 41-43, 47)

2. Actions for annulment — Actionable measures — Meaning — Extra-judicial decision to offset debts and amounts due adopted by the Commission on the basis of Regulation No 966/2012 — Included (Art. 263 TFEU; European Parliament and Council Regulation No 966/2012) (see para. 44)

3. Judicial proceedings — Application initiating proceedings — Pleas — Alteration once proceedings have been started — Condition (Rules of Procedure of the General Court, Arts 76(1)(d) and (e), and 84) (see paras 48, 50)

4. Judicial proceedings — Decision or regulation replacing the contested measure in the course of proceedings — Application to modify the application — Presentation of a request to adapt which does not comply with the Rules of Procedure — General Court’s obligation to inform the applicant and enable him to amend the application (Rules of Procedure of the General Court, Art. 86(2)) (see para. 52)

5. Judicial proceedings — General Court seised under an arbitration clause — Pleas in law — Infringement of the principles of legitimate expectation, legal certainty and transparency as well as the rules of good administration and the right to be heard — Invalid plea in law — Rejection (Art. 272 TFEU) (see paras 57, 58)

6. Judicial proceedings — General Court seised under an arbitration clause — Contract subject to national law — Applicability of national substantive law — Contract subject to the EU rules on subsidies supplemented, where necessary, by national law — Inapplicability of national law on subsidies (Art. 272 TFEU) (see paras 64-66)

7. Judicial proceedings — General Court seised under an arbitration clause — Contracts concluded under a specific research, technological development and demonstration programme — Refusal by the Commission to consider as eligible costs certain expenses declared by the beneficiary — Refusal based on the non-inclusion of funds in the beneficiary’s accounts — Administration of the beneficiary’s assets in the context of a trust with the result of the inclusion of the funds in the balance of the trustee’s accounts — Eligible nature of the expenses declared (Art. 272 TFEU) (see paras 82, 84-87)

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 expenses actually incurred — None — Ineligible expenses — Failure to observe the principle of the protection of legitimate expectations due to the assumption of expenses of the same kind in the context of previous projects — None (Art. 317 TFEU) (see paras 94, 95, 122, 123)

9. Judicial proceedings — General Court seised under an arbitration clause — Contracts concluded under a specific research, technological development and demonstration programme — Refusal by the Commission to consider as eligible costs certain sums advanced by the beneficiary by way of implementation of the contracts — Request for repayment of advances — Challenge by the beneficiary of the scope of the said repayment — Invocation of the principle of proportionality — Lawfulness — Obligation to perform the contract in good faith (Art. 5(4) TEU; Art. 272 TFEU) (see paras 107, 108)

Re:

Application, first, under Article 272 TFEU for a declaration that a claim mentioned in two information letters dated 2 December 2015 and in a debit note dated 2 December 2015 relating to a claim of EUR 1 770 417.29 does not exist and, second, under Article 263 TFEU for annulment of set-off decisions contained in seven letters dated 16 and 21 December 2015, 14 January, 26 April and 3 May 2016 seeking to offset each payment concerned against the applicant’s alleged debt and of that debit note and those information letters.

Operative part

The Court:

1. Declares unfounded the claim of the European Commission against GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG mentioned in debit note No 3241514917 dated 2 December 2015 and in the two information letters dated 2 December 2015 so far as concerns the declared expenses relating to the ‘central travel/meeting budget’ and the liquidated damages relating to it;

2. Dismisses the action as to the remainder;