CELEX: 62017CC0584
Language: en
Date: 2019-11-07 00:00:00
Title: Opinion of Advocate General Kokott delivered on 7 November 2019.

OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 7 November 2019 (1)

Case C‑584/17 P

ADR Center SpA

v

European Commission

(Appeal — Grant agreements between the Commission and beneficiaries of subsidies — Adoption of a decision which is enforceable within the meaning of Article 299 TFEU (enforcement decision) to recover subsidies awarded under a contract — Power of the Commission to adopt unilateral decisions to recover debts arising under a contract — Judicial review — Jurisdiction and power of review of the EU Courts)

Table of contents

I.  Introduction
II.  Legal framework
A.  Treaty on the Functioning of the European Union
B.  EU Financial Regulation
III.  Background to the appeal proceedings
A.  Grant agreements concluded
B.  Recovery decision of the Commission
C.  Procedure before the General Court
IV.  Appeal proceedings and forms of order sought
V.  Assessment
A.  The second ground of appeal
1.  The Commission’s power to adopt enforcement decisions in order to recover debts arising under a contract
(a)  Article 299 TFEU
(b)  Article 299 in conjunction with Article 263, Article 272 and Article 274 TFEU
(c)  Article 79(2) of Financial Regulation No 966/2012
(d)  Interim conclusion
2.  Compatibility of the adoption of enforcement decisions to recover debts arising under a contract with EU fundamental rights
(a)  Protection of legitimate expectations
(b)  The right to an effective remedy
(1)  Classification of enforcement decisions which are adopted to recover debts arising under a contract as acts which have to be challenged by an action for annulment under Article 263 TFEU
(2)  Non-suspensory effect of actions for annulment brought against enforcement decisions which are adopted to recover debts arising under a contract
(3)  The understanding of the distinction between actions for annulment under Article 263 TFEU and contractual actions under Article 272 TFEU in the General Court’s case-law
(i)  Actions for annulment under Article 263 TFEU brought against enforcement decisions which are adopted to recover debts arising under a contract
–  Relevance of the contract and of national law in an action for annulment brought against an enforcement decision
–  EU law applicable to contracts concluded by the European Union
–  Conclusion
(ii)  The need to consider all relevant questions of fact and law in contractual actions under Article 272 TFEU
(c)  Interim conclusion
3.  Conclusion regarding the second ground of appeal
B.  The first ground of appeal
C.  The effects of the merits of the second ground of appeal on the continued validity of the judgment under appeal
VI.  Costs
VII.  Conclusion

I.      Introduction

1.        Can the European Commission recover from its co-contractors sums due under contracts by means of unilateral, enforceable decisions or is it required to have recourse to the court having jurisdiction to adjudicate on the contract in order to obtain an enforceable instrument?

2.        This is the fundamental question in the present appeal. It arises in the light of the Commission’s practice over the last 15 years or so of increasingly asserting contractual claims, particularly vis-à-vis beneficiaries of subsidies, by means of unilaterally adopted decisions which are enforceable within the meaning of Article 299 TFEU (‘enforcement decisions’). (2)

3.        The judicial handling of these decisions is complicated, particularly because of the division of jurisdiction between the EU Courts, which, in principle, have jurisdiction for actions for annulment brought against unilateral EU acts, and national courts, which, in principle, that is to say, in the absence of a corresponding arbitration clause, have jurisdiction for disputes relating to contracts concluded by EU institutions.

4.        Against this background, the General Court has developed a complex and to some extent divergent case-law to distinguish between EU acts which are separable from a contract and purely contractual EU acts and between the corresponding actions for annulment and contractual actions.

5.        In its landmark ruling of 20 July 2017, (3) the judgment under appeal in the present case, which was delivered in a Chamber with Extended Composition, the General Court attempted to establish a uniform solution based on previous case-law. That solution consists, in essence, in recognising the Commission’s power to adopt enforcement decisions vis-à-vis its co-contractors, but at the same time seeking to make such decisions and the underlying contractual claims amenable to as broad a judicial review as possible, without, however, abandoning the previous case-law on the strict distinction between actions for annulment and contractual actions. As a result, legal protection remains complicated even in the context of this solution.

6.        In the present appeal, the Court is asked, for the first time, to rule on both the question whether the Commission has the power to adopt enforcement decisions to recover debts arising under a contract and the question of the legal remedy available to those to whom such decisions are addressed. The Court’s findings therefore have a high systemic relevance. This is illustrated not least by the fact that the General Court has currently stayed various proceedings pending the Court’s ruling in the present appeal. (4)
II.    Legal framework

A.      Treaty on the Functioning of the European Union

7.        Articles 272, 274 and 299 TFEU provide:
‘Article 272
The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law.
Article 274
Save where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States.
Article 299
Acts of the Council, the Commission or the European Central Bank which impose a pecuniary obligation on persons other than States, shall be enforceable.
Enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out. …
…
Enforcement may be suspended only by a decision of the Court. …’
B.      EU Financial Regulation

8.        Article 79(2) of the relevant regulation in the present case, (5) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (‘Financial Regulation No 966/2012’), (6) reads as follows:
‘Article 79  
Authorisation of recovery
…
2. The institution may formally establish an amount as being receivable from persons other than Member States by means of a decision which shall be enforceable within the meaning of Article 299 TFEU.
…’
III. Background to the appeal proceedings

A.      Grant agreements concluded

9.        In December 2008, the Commission concluded with consortia, whose coordinator was the appellant ADR Center SpA (‘ADR’), three grant agreements to support studies on alternative dispute resolution and mediation in the context of civil justice. (7) The grant agreements comprised special conditions (Latin numeral I), general conditions (Latin numeral II) and annexes. (8)

10.      Each of the grant agreements indicated the total eligible costs and the amount of the grant to be paid by the Commission, representing a certain percentage of the eligible costs. (9) Under Article  I.5 of the grant agreements, the Commission was to make a pre-financing payment to the beneficiaries and the balance was to be paid only after completion of the supported actions, compliance with reporting obligations by the beneficiaries of the grants and approval of the reports by the Commission. (10)

11.      Article  I.9 of the grant agreements provided: (11)
‘The grant is governed by the terms of the agreement, the Community rules applicable and, on a subsidiary basis, by the law of Belgium relating to grants.
The beneficiaries may bring legal proceedings regarding decisions by the Commission concerning the application of the provisions of the agreement and the arrangements for implementing it before the Court of First Instance of the European Communities and, in the event of appeal, the Court of Justice of the European Communities.’

12.      Article  II.19.5 of the grant agreements stated: (12)
‘The beneficiaries understand that, under Article 256 of the Treaty establishing the European Community [now Article 299 TFEU], the Commission may adopt an enforceable decision formally establishing an amount as receivable from persons other than States. An action may be brought against such decision before the [General Court].’

13.      Under Article  II.20 of the grant agreements, the coordinator undertook to provide any information requested by the Commission or by any other outside body authorised by the Commission. Furthermore, the beneficiaries agreed to have an audit of the use made of the grant carried out either directly by the Commission’s own staff or by any other outside body authorised to do so on behalf of the Commission, and recognised the Commission’s power to make recovery decisions, where appropriate in the light of the audit findings. Lastly, the beneficiaries undertook to allow the Commission and outside personnel authorised by it the appropriate right of access to sites and premises where the action was carried out and to all the information, including information in electronic format, needed in order to conduct such audits. (13)
B.      Recovery decision of the Commission

14.      In 2009 and 2010 the Commission made pre-financing payments in respect of the three grant agreements concerned, received the corresponding final reports and paid the balances for two of the agreements, whilst it reclaimed a fraction of the pre-financing payment made for the third. (14)

15.      In 2011 the Commission had an audit carried out at ADR’s offices, in accordance with Article  II.20 of the grant agreements, by an external audit firm which concluded that a substantial proportion of the costs declared should be rejected as ineligible.

16.      After ADR had commented, in 2011 and 2012, on the initial and revised draft audit reports, in June 2013 the Commission sent it the final audit reports submitted in April 2012 by the external auditors, which concluded that a major part of the costs declared should be rejected as ineligible. The Commission gave ADR another opportunity to provide further documentation and gave notification that debit notes would be sent soon and that the sums claimed could be recovered. (15)

17.      After ADR had commented on the audit reports, on 16 October 2013 the Commission sent it three debit notes for the sums, payable by 29 November 2013, which it was recovering in respect of the three grant agreements at issue. (16) After a further exchange with ADR, the Commission informed ADR on 6 December 2013 that it had initiated procedures for the recovery of the sums due, and sent reminders on 16 December 2013 and letters of formal notice on 26 February 2014, whilst, in the meantime, on 21 January 2014, a further meeting was held between the Commission and ADR. (17)

18.      Finally, on 27 June 2014, relying on Article 299 TFEU and Article 79(2) of Regulation No 966/2012, the Commission adopted Decision C(2014) 4485 final concerning the recovery of EUR 194 275.34 in principal owed by ADR pursuant to the grant agreements, together with late payment interest to 30 April 2014 of EUR 3 236 and an additional amount of EUR 21.30 for each additional day of delay from 1 May 2014 onwards (‘the contested decision’). Article 4 of the contested decision stated inter alia that that decision was enforceable within the meaning of Article 299 TFEU. (18)
C.      Procedure before the General Court

19.      By document of 30 August 2014, ADR brought an action before the General Court and claimed that the General Court should annul the contested decision and order the immediate payment by the Commission of the balance due to ADR under the grant agreements in the amount of EUR 49 172.52, damages as a result of the harm caused to it and the costs.

20.      The Commission, for its part, contended that the General Court should dismiss the action as unfounded, reject the request for payment of the balance due and damages as inadmissible and, in any event, unfounded, and order ADR to pay the costs.

21.      In December 2015, the Commission began enforcement of the contested decision. ADR then made an application to the General Court, by document of 21 January 2016, for suspension of the enforcement of the contested decision. By order of 22 January 2016, the President of the General Court granted the suspension of enforcement until the adoption of the order in the proceedings for interim measures. (19)

22.      By order of 7 April 2016 in the proceedings for interim measures, the President of the General Court dismissed the application for interim measures because ADR had not adequately demonstrated that not only ADR itself as a company with limited liability but also its shareholders lacked the capacity to satisfy the payment claims of the Commission. (20)

23.      In its judgment of 20 July 2017, the judgment under appeal in the present case, the General Court first held the head of claim raised by ADR seeking an order directing the Commission to pay the balance due to be admissible because it regarded the action not only as an action for annulment based on Article 263 TFEU, but also as a contractual action based on Article 272 TFEU. (21) On the other hand, the General Court rejected the head of claim seeking an order directing the Commission to pay ADR damages because it was not supported by sufficient arguments and was thus inadmissible. (22) Finally, on the merits, the General Court dismissed the action brought by ADR and ordered ADR to pay the costs incurred by the Commission and to bear half of its own costs and the Commission to pay half of the costs incurred by ADR.
IV.    Appeal proceedings and forms of order sought

24.      By document of 4 October 2017, ADR lodged an appeal against the judgment under appeal.

25.      ADR claims that the Court should set aside the judgment under appeal and annul the contested Commission decision, give final judgment on the dispute, allowing its claims submitted at first instance, and order the Commission to pay the costs.

26.      The Commission contends that the Court should dismiss the appeal and order ADR to pay the costs.

27.      The parties submitted written observations on the appeal before the Court and presented oral argument at a hearing on 27 February 2019.
V.      Assessment

28.      In support of its arguments, ADR relies on two grounds of appeal, the first of which concerns the interpretation of the principles of EU law relating to eligibility of expenditure and the second the Commission’s power to adopt enforcement decisions in order to recover debts arising under a contract. This second, more compelling, ground of appeal should be addressed first in the present case.
A.      The second ground of appeal

29.      By its second ground of appeal, ADR asserts that the General Court infringed Article 299 TFEU and Article 79 of Financial Regulation No 966/2012 (see section 1 below) and EU fundamental rights (see section 2 below) by confirming the Commission’s power to adopt enforcement decisions in order to recover debts arising under a contract.
1.      The Commission’s power to adopt enforcement decisions in order to recover debts arising under a contract

30.      According to paragraph 190 of the judgment under appeal, at first instance (23) ADR had disputed the Commission’s competence to adopt the contested decision with the argument that, in contractual matters, the Commission may not adopt enforcement decisions. Rather, it is required to obtain an enforceable instrument by bringing an action in order to compel its co-contractor to perform its financial obligations.

31.      The General Court then found in paragraphs 192 to 198 of the judgment under appeal that the legal bases of the contested decision are Article 299 TFEU and Article 79(2) of Financial Regulation No 966/2012. Those provisions confer on the Commission the power to recover debts by means of enforcement decisions, without distinguishing between contractual and non-contractual debts, and are therefore relevant to both kinds of debts. (24)

32.      According to ADR, the General Court erred in law with these findings because the first paragraph of Article 299 TFEU and Article 79(2) of Financial Regulation No 966/2012, which must be interpreted strictly, do not expressly provide that the power of self-enforcement laid down therein also applies to contractual debts.

33.      However, that view is not correct with regard to either Article 299 TFEU (a) or Article 79(2) of Financial Regulation No 966/2012 (c). It nevertheless follows from Article 299 in conjunction with Article 263, Article 272 and Article 274 TFEU that the Commission may adopt enforcement decisions in order to recover debts arising under a contract only if the contract in question falls within the jurisdiction of the EU Courts (b).
(a)    Article 299 TFEU

34.      First of all, it cannot be inferred from either the wording or the schematic position or the legislative context of Article 299 TFEU that acts which impose a contractually established pecuniary obligation might be excluded from the scope of that provision.

35.      According to its wording, the first paragraph of Article 299 TFEU merely provides that acts of the Council, the Commission or the European Central Bank which impose a pecuniary obligation are to be enforceable, the only proviso being that this applies to persons other than States.

36.      Article 299 TFEU does not, however, lay down any requirements as to the nature of the acts whose enforceable character it establishes. Rather, it is apparent from its schematic position in Section 2 (‘Procedures for the adoption of acts and other provisions’) of Chapter 2 (‘Legal acts of the Union, adoption procedures and other provisions’) of Title I (‘Institutional provisions’) of Part Six (‘Institutional and financial provisions’) of the TFEU, which follows Section 1 (‘The legal acts of the Union’) of that chapter, that Article 299 TFEU applies to all acts that are adopted by the Council, the Commission or the ECB to exercise the Union’s competences pursuant to Article 288 TFEU, which forms part of that Section 1, and that impose a pecuniary obligation.

37.      The fact that contracts concluded by the European Union are not among the acts referred to in Article 288 TFEU, but are,  in particular, mentioned in Article 272 TFEU, which is part of Section 5 (‘The Court of Justice of the European Union’) of Chapter 1 (‘The institutions’) of Title I of Part Six of the TFEU, does not lead to a different conclusion.

38.      Article 272 TFEU thus provides for the possibility to confer on the EU Courts, (25) by means of an arbitration clause, jurisdiction to give judgment on contracts concluded by the European Union, whilst under Article 280 TFEU the judgments of the EU Courts are to be enforceable under the conditions laid down in Article 299 TFEU. Nevertheless, this suggests, as regards the enforceability of debts arising from contracts concluded by the European Union, at most that such contracts are not as such enforceable within the meaning of Article 299 TFEU. It cannot be inferred from this schematic position, on the other hand, that claims arising from contracts concluded by the European Union can be asserted only by bringing an action and cannot be enforced by means of unilateral acts, which are themselves enforceable within the meaning of Article 299 TFEU.

39.      However, ADR submits that the fact that Article 299 TFEU relates solely to acts of the Council, the Commission and the ECB indicates that enforceability under that provision is not intended to apply to decisions on the recovery of debts arising under a contract. Such enforceability can thus relate solely to debts arising under decisions implementing  powers of public authorities, which may be adopted only by those institutions, such as penalty charge notices issued by the Commission in antitrust matters or regulatory sanction notices issued by the ECB. If the legislature had intended for debts originating in contracts also to be enforceable under Article 299 TFEU, it would have made provision for the enforceability of the acts of all the EU institutions, as all the EU institutions conclude contracts in order to procure resources to exercise their responsibilities.

40.      This submission raises the question, first of all, whether the fact that Article 299 TFEU mentions only acts of the Council, the Commission and the ECB means that acts of other European Union institutions, offices or agencies cannot in fact be enforceable under Article 299 TFEU unless this is expressly enshrined in primary law, as in Article 280 TFEU for the judgments of the Court of Justice of the European Union for example. This question has not yet been answered by the Court, as far as can be seen. (26) However, there is also no need to answer it in the context of the present appeal because the Commission is in any case the authority that adopted the contested decision.

41.      It is therefore also unnecessary in the present case to determine whether Article 79(2) of Financial Regulation No 966/2012 is to be interpreted as conferring on all EU institutions within the meaning of that regulation (27) the power formally to establish amounts as being receivable from persons other than Member States by means of decisions which are to be enforceable within the meaning of Article 299 TFEU (28) and, if that were the case, whether or not it would be compatible with Article 299 TFEU. The same holds for the question whether the regulations on the framework financial regulation for bodies established under the TFEU and the Euratom Treaty, in particular the EU’s decentralised agencies, are to be understood to mean that those bodies may also adopt enforcement decisions (29) and, if so, whether this would be compatible with Article 299 TFEU.

42.      Rather, in the context of the present appeal, it is sufficient to note that, even if acts of EU institutions and bodies other than those mentioned in Article 299 TFEU might not be enforceable under that provision without an amendment of primary legislation, (30) this would not mean that the Commission cannot recover debts arising under a contract by means of enforcement decisions.

43.      The fact that Article 299 TFEU is restricted to acts of the Council, the Commission and the ECB could certainly indicate that the authors both of the original versions (31) and of the numerous amendments to the EU Treaties envisaged the enforceability of typical acts of those institutions, such as penalty charge notices issued by the Commission in antitrust matters, rather than the unilateral assertion of claims originating from procurement contracts concluded by all the EU institutions.

44.      It nevertheless seems inappropriate to presume this to be a deliberate decision by the authors of the Treaties not to allow the enforceability provided for in Article 299 TFEU for decisions declaring enforceable debts arising under contracts concluded by the Commission. Indeed, as was explained above, (32) it is apparent from the schematic position of Article 299 TFEU that it seeks to render enforceable all acts which are adopted by the Commission to exercise the European Union’s competences and which impose a pecuniary obligation.

45.      The legal acts and transactions which are effected by the Commission in order to exercise the responsibilities of the European Union, particularly in the field of direct subsidies, now no longer cover only the adoption of unilateral acts, but increasingly also the conclusion of contracts. There is no indication that the authors of Article 299 TFEU did not wish to regard decisions by the Commission to assert claims arising from such contracts as acts which impose a pecuniary obligation and can thus be enforceable under that provision, provided there is a basis authorising the Commission to adopt such decisions. It is not possible to infer either from EU law or from the legal orders of the Member States a general principle that debts arising under contracts concluded by the administration could never be unilaterally recovered. (33)

46.      Furthermore, the need to recover unduly paid sums follows from the Commission’s obligation under Articles 317 and 325 TFEU to observe the principle of sound financial management and to counter activities affecting the financial interests of the European Union. (34) This suggests that the authors of the Treaties intended to give the Commission effective instruments to protect the financial interests of the European Union, irrespective of whether it employs unilateral or contractual forms of action to exercise its responsibilities.

47.      In the light of the foregoing, it follows that Article 299 TFEU is solely the general basic provision under which acts of the Commission which impose pecuniary obligations can be enforceable and open to enforcement. On the other hand, Article 299 TFEU does not say anything about the scope ratione materiae and conditions for the adoption of such acts. It cannot therefore be inferred from Article 299 TFEU that that provision is not also relevant to decisions which impose contractually established pecuniary obligations.
(b)    Article 299 in conjunction with Article 263, Article 272 and Article 274 TFEU

48.      The power to adopt an enforcement decision exists in respect of debts arising under a contract, however, only in so far as the Court of Justice has jurisdiction for disputes under the contract on the basis of an arbitration clause. Otherwise, the Commission would be able to circumvent the jurisdiction of the national courts by adopting such a decision, as this automatically establishes jurisdiction for the EU Courts.

49.      This conclusion follows from the rules on the enforceability of an enforcement decision. Under the fourth paragraph of Article 299 TFEU, enforcement of such a decision may be suspended only by a decision of the Court of Justice of the European Union, while the courts of the country concerned have jurisdiction only over complaints that enforcement is being carried out in an irregular manner. Furthermore, the Rules of Procedure of both the General Court and the Court of Justice provide that applications to suspend the enforcement of any measure, submitted pursuant to Article 299 TFEU, are admissible only in connection with an action before the General Court or the Court of Justice. (35) This would seem to be difficult to reconcile with national courts having jurisdiction to review such measures on the merits.

50.      In addition, in the judgment under appeal, (36) as in its settled case-law, (37) the General Court rightly (38) held that an enforcement decision is an act which has to be challenged by its addressees by an action for annulment under the fourth paragraph of Article 263 TFEU, whether that decision was adopted to recover contractual or non-contractual claims.

51.      The adoption of an enforcement decision thus automatically establishes the jurisdiction of the EU Courts even if that decision concerns the recovery of a sum owed under a contract.

52.      Under Article 272 in conjunction with Article 274 TFEU, however, the EU Courts have jurisdiction for actions relating to contracts concluded by the EU institutions only where those contracts contain a corresponding arbitration clause. As is expressly stated in Article 274 TFEU, disputes to which the European Union is a party are not on that ground to be excluded from the jurisdiction of the courts or tribunals of the Member States, save where jurisdiction is conferred on the EU Courts by the EU Treaties.

53.      If the contract does not contain an arbitration clause, the adoption of an enforcement decision would therefore effectively circumvent the division of jurisdiction between the EU Courts and national courts enshrined in primary law and extend the jurisdiction of the EU Courts beyond the limits laid down in primary law by establishing jurisdiction for a contractual dispute, even though, in accordance with the intention of the parties, as reflected in the absence of an arbitration clause, jurisdiction lies with the national courts. (39)

54.      However, Article 299 TFEU simply does not provide a basis authorising such an extension of the jurisdiction of the EU Courts since, as has already been explained, (40) the spirit and purpose of that provision is solely to render acts which are adopted by the EU institutions pursuant to Article 288 TFEU and which impose a pecuniary obligation immediately enforceable. Accordingly, Article 299 TFEU is purely an aid to enforcement, which is perfectly justified in the light of the need for the responsibilities of the EU institutions to be exercised and the protection of the financial interests of the European Union. Nevertheless, against the background of the EU principle of conferral enshrined in Articles 4 and 5 TEU in particular, this aid to enforcement does not offer any basis to depart from the division of jurisdiction between the EU Courts and national courts laid down in Articles 272 and 274 TFEU. (41)

55.      This interpretation is confirmed by the case-law of the Court of Justice on the distinction between actions for annulment under Article 263 TFEU and contractual actions under Article 272 TFEU. According to that case-law, it would not be compatible with Articles 272 and 274 TFEU, were the EU judicature to hold that it had jurisdiction on the basis of Article 263 TFEU to adjudicate on the annulment of acts falling within purely contractual relationships. Otherwise, where the contract does not contain an arbitration clause, the European Union judicature would risk extending its jurisdiction beyond the limits laid down by Article 274 TFEU. (42) As the Court has held, it is thus not possible for the Commission’s co-contractor unilaterally to create an exception to the division of powers between the EU Courts and the national courts by causing the Commission to reject a request and subsequently describing that rejection as a decision within the meaning of Article 263 TFEU. (43)

56.      This must mean, conversely, that the Commission also cannot unilaterally create an exception to the division of powers between the EU Courts and the national courts by adopting an enforcement decision to recover a debt arising under a contract, which is an EU act that can be challenged by an action for annulment under Article 263 TFEU, even though the contract in question does not contain an arbitration clause conferring on the EU Courts jurisdiction for disputes relating to the contractual obligations of the parties.

57.      In the present case, the General Court did not expressly hold in the judgment under appeal that an enforcement decision may be adopted by the Commission in order to recover a debt arising under a contract only if the contract in question contains an arbitration clause in favour of the EU Courts. However, the grant agreements at issue did each contain such a clause in their contractual special conditions. (44)

58.      Accordingly, it cannot be held in the present case that the General Court erred in law when it found that decisions adopted by the Commission in order to recover debts arising under a contract may also be enforceable under Article 299 TFEU.
(c)    Article 79(2) of Financial Regulation No 966/2012

59.      As the General Court itself has already held, (45) however, Article 299 TFEU does not, in itself, constitute a basis authorising the adoption of acts which establish an enforceable pecuniary obligation in accordance with that provision. Such a basis for authorisation must instead be sought in other rules of primary or secondary law.

60.      In the present case, the contested decision indicates that the basis for its adoption is Article 79(2) of Financial Regulation No 966/2012, which provides that the institutions ‘may formally establish an amount as being receivable … by means of a decision which shall be enforceable within the meaning of Article 299 TFEU’. (46)

61.      The question whether this provision, which is broad in its wording, also authorises the Commission to adopt decisions to enforce specifically contractual claims was answered by the General Court in paragraph 195 of the judgment under appeal with reference to the scheme of Financial Regulation No 966/2012.

62.      It stated that Article 79(2) is included in a chapter entitled ‘Revenue operations’ that, like the following chapter ‘Expenditure operations’, is included within Title IV (‘Implementation of the budget’), which in turn forms part of the first part of Financial Regulation No 966/2012, entitled ‘Common provisions’. The General Court concluded that the two chapters on revenue and expenditure operations are thus intended to apply not only in a particular field of EU action, but to all operations within the European Union’s budget.

63.      No error in law is discernible in these statements. In particular, they are not called into question by the argument put forward by ADR that Article 79(2) of Financial Regulation No 966/2012 cannot be considered implicitly to authorise the Commission to adopt enforceable instruments in a contractual context, even though that provision does not explicitly stipulate that it is also applicable in such a context. As the General Court correctly stated, Article 79(2) mentions neither that it applies specifically to non-contractual debts nor that it applies specifically to contractual debts, suggesting precisely its general applicability.

64.      No other conclusion follows from Article 90 of Financial Regulation No 966/2012, under which EU payments ‘are made on production of proof that the relevant action is in accordance with the provisions of the basic act or the contract’. According to ADR, this provision shows that the rules of Financial Regulation No 966/2012 which apply in a contractual framework are necessarily explicit in this regard.

65.      This argument cannot be accepted, however. Article 90 of Financial Regulation No 966/2012 merely provides that a payment may be made by the European Union only where it is proved that the action in respect of which it is paid is in accordance with the provisions of the act on which that action is based. This can be not only a unilateral act, (47) but also a contract.

66.      Article 90 thus simply mentions all kinds of acts to which it relates and, like Article 79 of Financial Regulation No 966/2012, is not therefore a rule specifically applicable to contractual or non-contractual matters, but a general provision. Accordingly, the General Court could find, without committing any error of law, in paragraph 196 of the judgment under appeal, that Article 90 supports the interpretation whereby the provisions of Title IV of Financial Regulation No 966/2012 apply also to contractual matters.

67.      The interpretation under which the power of self-enforcement under Article 79(2) of Financial Regulation No 966/2012 also applies to debts arising under a contract is confirmed, moreover, by the drafting history of that provision. (48)

68.      It is thus clear from the Commission’s Explanatory Memorandum for its predecessor provision in Article 72(2) of Regulation No 1605/2002 (49) that the EU institutions’ power under that provision formally to establish amounts as receivable by means of enforcement decisions was laid down in order to allow all recovery orders to be enforceable and not only those adopted on the basis of a previous formal decision, such as a fine notice in competition law. This was expressly intended to help the recovery of own resources, the judicial recovery of which had proven a lengthy process. Accordingly, the Commission announced in a communication from 2002 that, in the field of direct management of resources in particular, including (also contractual) subsidies, it intended to give preference to the adoption of enforceable recovery instruments. (50)

69.      In the light of the foregoing, the General Court did not err in law when it found that Article 79(2) of Financial Regulation No 966/2012 confers on the Commission the power to adopt decisions which are enforceable under Article 299 TFEU also with a view to the recovery of debts arising under a contract.
(d)    Interim conclusion

70.      In the light of the foregoing considerations, it must be stated that Article 299 TFEU in conjunction with Article 79(2) of Financial Regulation No 966/2012 confers on the Commission the power to recover debts arising under a contract by means of enforcement decisions, provided the contracts in question contain an arbitration clause in favour of the EU Courts in accordance with Article 272 TFEU. Since the grant agreements at issue in the present case each contained such a clause, the General Court could find, without making an error in law, that the Commission had the power to adopt the contested decision on the basis of those provisions.

71.      The first part of the second ground of appeal must therefore be rejected.
2.      Compatibility of the adoption of enforcement decisions to recover debts arising under a contract with EU fundamental rights

72.      ADR asserts, however, that the exercise of the power to adopt enforcement decisions to recover all debts is not compatible, in the case of debts arising under a contract, with the rights of the Commission’s co-contractors to protection of legitimate expectations and an effective remedy.

73.      Contrary to the view taken by ADR, it does not follow from the judgment of the Court of Justice in BayWa, cited by ADR, that all EU regulations related to financial rules must be interpreted strictly. As the Commission rightly argues, in that judgment the Court merely found that provisions which create a right to benefits financed by EU funds must be given a strict interpretation. (51) This is consistent with the high importance of the protection of the financial interests of the European Union, as expressed in Article 325 TFEU, the Convention on the protection of the European Communities’ financial interests (52) and Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law. (53)

74.      As ADR rightly maintains in its reply, however, this cannot mean that the powers in relation to the financial rules which authorise the Commission to encroach on the rights of its co-contractors are interpreted and applied without due regard for those rights. Indeed, the obligation to protect the financial interests of the European Union cannot run counter to EU fundamental rights. (54)

75.      Accordingly, it must be examined, first, whether the adoption of enforcement decisions to recover debts arising under a contract infringes the principle of protection of legitimate expectations (a). Second, it is necessary to consider whether the adoption of such decisions is compatible with the right to an effective remedy (b).
(a)    Protection of legitimate expectations

76.      ADR relies on the judgments of the Court of Justice in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (55) and Commission v AMI Semiconductor Belgium and Others and my Opinion in the latter case (56) in claiming that the Court rejects actions taken unilaterally by the Commission as a public authority in a contractual context.

77.      ADR asserts that the Court of Justice called into question the Commission’s practice of unilaterally asserting contractual claims in its judgment in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission in particular, since  it held that in the event that the Commission chooses to allocate financial contributions by means of a contract, it is bound to stay within that framework. (57) According to ADR, a co-contractor cannot therefore assume that the Commission will depart from that contractual framework and act towards it as a public authority.

78.      In paragraphs 199 to 208 of the judgment under appeal, the General Court made a detailed appraisal of the judgment of the Court of Justice in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission and a judgment of the General Court (58) which was based, on the point at issue, on the Opinion in Commission v AMI Semiconductor Belgium and Others. It concluded that it cannot be inferred from those judgments that the EU judicature has prohibited the Commission from exercising its power to adopt enforcement decisions in contractual contexts.

79.      This conclusion is not vitiated by an error in law. As the General Court rightly held, in the judgments at issue the Court of Justice and the General Court merely dealt with the questions of the legal nature and the ability to challenge debit notes (59) issued in a contractual context, which the Commission sends to a debtor pursuant to Article 78(2) of Financial Regulation No 966/2012 in order to request that he pay a claim before it makes recovery by way of enforcement or by legal action. (60)

80.      On the other hand, in the judgments concerned, the EU Courts did not deal with the question whether the Commission may have recourse, in a contractual context, to its power under Article 79(2) of Financial Regulation No 966/2012 formally to establish an amount as being receivable by means of an enforcement decision. This is also true of the judgment in Commission v AMI Semiconductor Belgium and Others and my Opinion in that case, which concerned the question whether the Commission has discretion with regard to approval of reimbursable costs incurred by its co-contractor. (61)

81.      Nevertheless, the judgments invoked by ADR show that recognition that the Commission has powers to act as a public authority in its role as a party to a contract is at least not self-evident, as in those judgments the EU Courts appear to employ a model of contract of public authorities in which the two parties are equal and the administration does not have unilateral prerogatives the exercise of which would be perceived as foreign to the contractual framework.

82.      Furthermore, there are also very different ideas in the EU Member States regarding the contracting administration’s possible powers to act as a public authority. (62) Whilst German law, for example, strictly rejects such powers, it is recognised in French law not only that the administration has unilateral powers to amend and terminate contracts in administrative law in the context of the contrat administratif, but also that the administration may have recourse, as part of the performance of any contracts, including contracts governed by private law, to its general prerogatives as a public authority under the financial rules, such as the power to declare pecuniary claims enforceable. (63)

83.      It certainly does  not follow from these different ideas in the Member States regarding a contracting administration’s powers as a public authority that the basis authorising the Commission to adopt enforcement decisions in Article 79(2) of Financial Regulation No 966/2012 should be seen as irrelevant in a contractual context. This would run counter to the abovementioned (64) intention of the EU legislature to extend the possibility of unilateral recovery to all claims, including the Commission’s contractual claims in the field of the recovery of own resources.

84.      Furthermore, it is precisely the different approaches in the Member States that  show that there is no general principle whereby, when an administration concludes contracts with individuals, it may never have recourse to its general powers as a public authority or otherwise act vis-à-vis its co-contractor as a public authority. Accordingly, the Commission’s power to adopt enforcement decisions in order to recover debts arising under a contract also cannot be rejected by reference to general principles of contract law, as such principles simply do not apply in such a general way to contracts of public authorities; instead, legal experts from various Member States have very different ideas in this regard. (65) Lastly, various provisions of EU law on the unilateral powers of the contracting EU administration suggest that the EU legislature itself seems to employ a model of contract of public authorities in which the administration has powers as a public authority. (66)

85.      However, in view of the very different models of contract of public authorities in the various legal traditions of the Member States, it is perfectly conceivable that beneficiaries of subsidies that conclude grant agreements with the Commission like those at issue here do not assume that the Commission can recover the funds awarded under a contract not only by legal action, but also by unilaterally adopting directly enforceable decisions as a public authority. This holds all the more because, as a rule, the contracts concluded by the Commission contain a clause which confers jurisdiction for contractual disputes on the EU judicature or a national court. (67)

86.      Under these circumstances, there is an infringement of the principle of protection of legitimate expectations where the Commission avails itself of its power under Article 79(2) of Financial Regulation No 966/2012 in order to adopt enforcement decisions to recover debts arising under a contract, but no such provision is made by a specific clause in the contract in question or the general or special conditions of that contract. (68) Indeed, as Advocate General Cosmas explained in his Opinion in Duff and Others, this principle requires the EU organs to exercise their powers in such a way that situations and relationships lawfully created under EU law are not affected in a manner which could not have been foreseen by a diligent person. (69)

87.      As the General Court rightly held in paragraph 207 of the judgment under appeal, a contractual clause providing for the adoption of enforcement decisions does not establish the Commission’s power to adopt such decisions, as that power is founded solely on Article 299 TFEU in conjunction with Article 79(2) of Financial Regulation No 966/2012. However, such a clause has the function of informing the Commission’s co-contractor of the possibility of unilateral recovery of debts so that it enters into the contract in full knowledge of the relevant legal situation.

88.      In the present case, the grant agreements at issue each contain a clause in their general conditions informing beneficiaries that the Commission may formally establish an amount as being receivable in an enforcement decision. (70)

89.      It cannot therefore be held in the present case that the General Court infringed the principle of protection of legitimate expectations when it found that the previous case-law of the EU Courts does not prevent the Commission from adopting enforcement decisions in order to recover debts arising under a contract.
(b)    The right to an effective remedy

90.      In a further line of argument, ADR maintains that the General Court erred in law when it found that the adoption of enforcement decisions in respect of debts arising under a contract does not infringe the right to an effective remedy enshrined in Article 47 of the Charter, as such decisions allow the Commission to set itself up as judge in its own case vis-à-vis its co-contractors and to render access to the court having jurisdiction to adjudicate on the contract entirely ineffective.

91.      These arguments raise the question whether the General Court was entitled to hold that the adoption of enforcement decisions to recover debts arising under a contract does not entail an infringement of the right to an effective remedy because the remedy against such a decision available to the Commission’s co-contractors satisfies the requirements governing the right to an effective remedy.

92.      According to paragraph 190 of the judgment under appeal, ADR essentially claimed at first instance that the effectiveness of actions for annulment brought against enforcement decisions adopted to recover debts arising under a contract is affected by the case-law of the General Court according to which, in such actions, pleas based on breach of contract and violation of the national law applicable are inadmissible. According to ADR, the Commission can thus enforce payment of its debts against its co-contractors even though the underlying contractual claims have not yet been examined.

93.      The General Court rejected that claim in paragraphs 209 to 214 of the judgment under appeal on the ground that it considered the action to be based not only on Article 263, but also on Article 272 TFEU. It thus reviewed both the procedural legality of the contested decision and the substantive merits of the Commission’s contractual claims against ADR underlying the decision.

94.      Accordingly, it must first be clarified below whether the General Court rightly held that the contested decision constituted an act which could be challenged by an action for annulment  (1). It will then be examined whether it constitutes an infringement of the right to an effective remedy that an action for annulment brought against such a decision does not automatically have suspensory effect  (2). Lastly, it must be examined whether the General Court rightly held that in such an action the EU judicature is required to review only the procedural legality of the contested decision, whilst the review of the substantive merits of the underlying claim may be undertaken only by the court having jurisdiction to adjudicate on the contract. This makes it necessary to analyse the General Court’s understanding of the distinction between actions for annulment under Article 263 TFEU and contractual actions under Article 272 TFEU (3).
(1)    Classification of enforcement decisions which are adopted to recover debts arising under a contract as acts which have to be challenged by an action for annulment under Article 263 TFEU

95.      As has already been mentioned, (71) the EU Courts have jurisdiction for actions relating to contracts concluded by the EU institutions under Article 272 in conjunction with Article 274 TFEU only where those contracts contain a corresponding arbitration clause. As has also been mentioned, (72) however, the present case shows that the EU Courts may also have to deal with acts of the EU institutions in connection with contracts as part of actions for annulment under Article 263 TFEU.

96.      This is not precluded by Article 272 TFEU. It cannot be inferred from the wording, the schematic position or the spirit and purpose of that provision that it is only on this basis that the EU Courts can have jurisdiction for disputes in connection with contracts concluded by the EU institutions. As has already been explained, (73) it is merely apparent from Article 272 in conjunction with Article 274 TFEU that the Commission cannot unilaterally create an exception to the division of powers between the EU Courts and the national courts by adopting enforcement decisions, with the result that such decisions are lawful only if the contract in question contains an arbitration clause in favour of the EU Courts. The presence of such a clause means in this case, however, only that the EU Courts and not the national courts have jurisdiction for disputes arising from the contract, not that the EU Courts can rule on such disputes solely on the basis of Article 272 TFEU.

97.      According to the case-law of the Court of Justice, where there is a contract between the applicant and one of the institutions, an action may be brought before the European Union judicature on the basis of Article 263 TFEU only where the contested measure aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the contracting institution acting in its capacity as an administrative authority. (74)

98.      As far as can be seen, it follows from the previous case-law of the EU Courts that, at least in principle, only two categories of measures satisfy these criteria:
–        first, measures connected with a contractual relationship between an EU institution and its co-contractor, whose effect, however, is produced entirely outside of that contractual relationship, such as the temporary exclusion of a co-contractor which has breached a contract from further EU contracts and grants, or the ‘blacklisting’ of such a co-contractor in a central database of the EU institutions; (75)
–        second, set-off decisions (76) and enforcement decisions (77) which are adopted to enforce payment of debts arising under a contract.

99.      With regard to the latter, however, ADR claims that neither the Commission nor the General Court has explained in the present case to what extent the contested decision produced binding legal effects falling outside of the contractual relationship between the parties. According to ADR, it is evident that the legal effects of that decision are connected with the contractual relationships between the parties.

100. It is true that the legal effects of an enforcement decision adopted to recover a debt arising under a contract are naturally also produced within the contractual relationship in question since, by adopting such a decision, the Commission first establishes the amount which it considers is owed to it by its co-contractor based on its contractual obligations and orders the co-contractor to pay that amount. Second, if the decision in question were to become final in the absence of a (successful) challenge, the existence of the relevant contractual obligations would thus be established in law and there would no longer be any objection to the existence of those obligations. Third, a successful enforcement of the decision would result in the performance of the contractual obligations at issue.

101. Nevertheless, going beyond these contractual legal effects, an enforcement decision which is adopted by the Commission in the exercise of its power as a public authority under Article 79(2) of Financial Regulation No 966/2012 to declare its own claims enforceable also produces binding legal effects going beyond the contractual relationship between the parties.

102. As has just been stated, (78) according to the Court of Justice, an EU measure which, although it is connected with a contract, can be challenged by an action for annulment under Article 263 TFEU is defined by the fact that it produces legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the contracting institution not acting in its capacity as a contracting party, but in its general capacity as an administrative authority.

103. In the case of an enforcement decision, the two components of this definition interact in so far as the non-contractual nature of the legal effects of such a decision is defined by the non-contractual, public-authority origin of those legal effects. Thus, the non-contractual legal effects of an enforcement decision consist in the fact that, through a unilateral act adopted by the Commission as a public authority, it establishes the enforceability of a debt arising under a contract. Such a legal effect falls outside of the contractual relationship because, unlike the establishment of the enforceability of a debt arising under a contract obtained by legal action for example, it is not based on the contractual rights and obligations of the parties, but on a general, non-contractual power of the Commission acting as a public authority. (79)

104. This was rightly found by the General Court when it stated in paragraph 207 of the judgment under appeal that the decision at issue constitutes a measure which aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the prerogatives of a public authority conferred on the Commission acting in its capacity as an administrative authority, because the legal nature of that decision is defined not by the agreements concerned, but by Article 299 TFEU and Article 79(2) of Financial Regulation No 966/2012. It cannot therefore be held that the General Court did not explain to what extent the contested decision produces binding legal effects falling outside of the contractual relationship between the parties.

105. It follows from the foregoing that in the judgment under appeal the General Court rightly classified the contested decision as an EU act which had to be challenged by ADR by means of an action for annulment under Article 263 TFEU.
(2)    Non-suspensory effect of actions for annulment brought against enforcement decisions which are adopted to recover debts arising under a contract

106. ADR takes the view, however, that it constitutes an infringement of the right to an effective remedy if an action for annulment under Article 263 TFEU brought against an enforcement decision which was adopted to recover a debt arising under a contract does not have suspensory effect, even though the enforcement of such a decision could lead to the bankruptcy of the Commission’s co-contractor.

107. Under Article 278 TFEU, actions brought before the EU Courts do not have suspensory effect. The EU judicature may, however, if it considers that circumstances so require, order that application of the contested act be suspended. Likewise, as has already been mentioned, (80) the enforcement of an act which imposes a pecuniary obligation and is enforceable under Article 299 TFEU may be suspended, in accordance with the fourth paragraph of Article 299 TFEU, by a decision of the EU Courts. Moreover, ADR did avail itself of the possibility to apply for such suspension of enforcement in the present case, albeit unsuccessfully. (81)

108. According to the Court of Justice, the fact that actions brought before the EU Courts do not automatically have suspensory effect does not constitute an infringement of the right to complete and effective judicial protection because of this possibility to obtain interim protection. The availability of interim protection, if it is necessary for the full effectiveness of the definitive future decision, ensures that there is no lacuna in the legal protection provided by the EU Courts. (82)

109. The argument at issue put forward by ADR now raises the question whether it nevertheless constitutes an infringement of the right to an effective remedy that an action for annulment brought against an enforcement decision which was adopted to recover a debt arising under a contract does not have suspensory effect. In other words, is the enforcement of a debt before the existence of that debt has been examined, in cases in which no interim judicial protection is granted, unacceptable in a contractual context?

110. The basis for ADR’s argument is that normally under a contract a contracting party automatically enjoys a deferral of payment in respect of a disputed payment claim of the other contracting party until the court has ruled on the claim at issue. This situation changes only, as an exception, if the other party obtains interim judicial protection in order to secure the disputed claim.

111. Consequently, the adoption of an enforcement decision, as opposed to an action brought by the Commission under Article 272 TFEU, not only reverses the responsibility for making a challenge for the co-contractor, but also reduces the effectiveness of legal protection. This interference with effective judicial protection is nevertheless justified because the co-contractor was informed of that risk when the contract was concluded and can still seek interim judicial protection and, lastly, there is a legitimate interest in the effective protection of the financial interests of the European Union.

112. The argument raised by ADR regarding the absence of automatic suspensory effect of an action for annulment under Article 263 TFEU does not therefore reveal an error in law in the judgment under appeal.
(3)    The understanding of the distinction between actions for annulment under Article 263 TFEU and contractual actions under Article 272 TFEU in the General Court’s case-law

113. According to ADR, recognition of the Commission’s power to adopt enforcement decisions to recover debts arising under a contract, which must be challenged by an action for annulment under Article 263 TFEU, renders recourse to the court having jurisdiction to adjudicate on the contract entirely ineffective.

114. As was summarised above, (83) the General Court rejected this claim in paragraphs 209 to 214 of the judgment under appeal on the ground that it considered the action brought by ADR to be based not only on Article 263, but also on Article 272 TFEU. It thus reviewed both the procedural legality of the contested decision and the substantive merits of the Commission’s contractual claims against ADR underlying that decision.

115. This separate review of the claim made by ADR at first instance in an action for annulment, on the one hand, and a contractual action, on the other, is based on the premiss developed in the General Court’s case-law and reiterated in paragraph 70 of the judgment under appeal that in the context of Article 263 TFEU an enforcement decision can be assessed only in the light of EU law. In contrast, in the context of Article 272 TFEU, only the infringement of the contract or the national law applicable to it can be claimed.

116. It follows, according to the line of case-law developed by the General Court which underlies the judgment under appeal, that in an action for annulment all pleas based on an infringement of the terms of the contract or the national law declared applicable in the contract will be found to be inadmissible. This means that in an action for annulment brought against an enforcement decision the substantive merits of that decision, and thus the Commission’s lawful entitlement to the asserted contractual claim, cannot be reviewed. (84)

117. If the General Court nevertheless wishes to carry out such a review, it must therefore first examine whether the action brought before it can be ‘reclassified’ such that it seeks not only the annulment of the contested decision but also a declaration that the Commission is not actually entitled to the disputed contractual claim. If so, the General Court may, as happened in the present case, consider the action to be based not only on Article 263, but also on Article 272 TFEU, and successively examine the pleas attributed to each type of action. However, such reclassification can be done only under certain conditions. (85)

118. On the other hand, according to this line of case-law developed by the General Court, if there is no act that is considered to be separable from the contract and thus separately open to challenge under Article 263 TFEU, the EU judicature, when adjudicating on a contractual action solely on the basis of the provisions of Article 272 TFEU, can examine only complaints based on ‘the terms of the contract or the [national] law applicable to it’. By contrast, in contractual actions under Article 272 TFEU, ‘pleas for annulment’ (‘moyens d’annulation’), that is to say, pleas which are ‘founded exclusively on considerations of administrative law’ or ‘characteristic of an action for annulment’, such as failure to state reasons, infringement of the applicant’s rights of defence or infringement of his right to good administration, will be declared inadmissible. (86)

119. ADR correctly asserts that the application of this line of case-law developed by the General Court correlates with an infringement of the right of the Commission’s co-contractors to an effective remedy, both in actions for annulment under Article 263 TFEU (i) and in contractual actions under Article 272 TFEU (ii).
(i)    Actions for annulment under Article 263 TFEU brought against enforcement decisions which are adopted to recover debts arising under a contract

120. The General Court’s view that the parties’ contractual claims cannot be examined in an action for annulment brought against an enforcement decision is founded on two grave misassumptions: first, that the rules of law examined in an action for annulment can only be rules of EU law and, second, that the law applicable to the contract can only be national law.
–       Relevance of the contract and of national law in an action for annulment brought against an enforcement decision

121. The General Court first took the view that the parties’ contractual claims cannot be examined in an action for annulment brought against an enforcement decision, as far as can be seen, in its judgment of 27 September 2012 in Applied Microengineering v Commission, (87) which is cited in paragraph 70 of the judgment under appeal. In so doing, it relied on a statement made by the Court of Justice in its judgment of 17 December 1970 in Internationale Handelsgesellschaft, (88) according to which the validity of measures adopted by the EU institutions can only be judged in the light of EU law because recourse to the legal rules or concepts of national law in order to judge the validity of such measures would have an adverse effect on the uniformity and efficacy of EU law.

122. However, that statement made by the Court of Justice related to the question whether the lawfulness of a Community regulation can be examined on the basis of the law of a Member State. (89) The Court rightly answered this question in the negative, as this would have an adverse effect on the uniformity and efficacy of Community law. Nevertheless, such a situation is not comparable with the situation where an enforcement decision adopted in order to recover a debt arising under a contract is to be examined on the basis of the national law which the parties have contractually agreed to be applicable.

123. Unlike an EU regulation, in so far as the national law chosen by the parties to the contract is relevant to the existence of the debt which is declared enforceable by the decision, such a decision is based on that law. This also holds for the clauses of the contracts in question, as the Commission is not entitled to declare enforceable a contractual claim which does not exist under the contract and the law applicable to it. The contractual clauses and national law thus become ‘rules of law relating to the application of the Treaties’ for the purposes of the second paragraph of Article 263 TFEU, on the basis of which the EU judicature must review the legality of the decision in the course of an action for annulment.

124. In the case of an enforcement decision, the adverse effect on the uniformity and efficacy of EU law resulting from recourse to national law in judging the validity of an EU measure thus follows from the possibility under Articles 335 and 340 TFEU to make a contract concluded by the European Union (also) subject to the national law chosen by the parties. This represents an exception and stems from the special case of the interrelationship between EU law and national law rooted in the absence of fully fledged contract law at EU level.

125. The formula developed by the General Court,  based on the wording of the second paragraph of Article 263 TFEU and the Court of Justice’s judgment in Internationale Handelsgesellschaft,  in paragraphs 40 and 41 of its judgment in Applied Microengineering v Commission, according to which ‘the European Union judicature must, when adjudicating on an action for annulment on the basis of the provisions of Article 263 TFEU, assess the lawfulness of the contested act [only] in the light of the Treaty or of any rule of law relating to its application, and, thus, of European Union law’, (90) is thus inappropriate in respect of an enforcement decision adopted to recover a debt arising under a contract. (91)
–       EU law applicable to contracts concluded by the European Union

126. Conversely, the General Court’s assumption in paragraphs 40 and 41 of the judgment in Applied Microengineering v Commission that the ‘law applicable to [the contract]’ can only be national law must also be rejected. It is wrong to assume that contracts concluded by the EU institutions are subject only to the terms of the contract and the national law chosen by the parties. Rather, the general provisions of primary and secondary legislation and the relevant special provisions of EU secondary legislation are also always applicable to such contracts.

127. In particular, Financial Regulation No 966/2012 and many sectorial measures, for example relating to promotion of research, now include a number of provisions that are relevant to contracts concluded by the EU institutions, especially grant agreements and public contracts. (92) Accordingly, under the rules of application of Financial Regulation No 966/2012, such contracts must state that EU law is the law which applies to the contract, complemented, where necessary, by national law as specified in the contract. (93)

128. As the General Court rightly stated in paragraph 85 of the judgment under appeal, the national law declared by the parties to be applicable on a subsidiary basis is thus only the general provisions of the chosen national law on contracts and bonds, which are intended to compensate for any absence of such rules at EU level.
–       Conclusion

129. It follows from the foregoing that the view expressed in paragraphs 40 and 41 of the General Court’s judgment in Applied Microengineering v Commission that the rules of law which are examined in an action for annulment can only be rules of EU law and the law applicable to the contract can only be national law is incorrect.

130. There is thus no longer any justification for the idea underlying the General Court’s case-law on the distinction between actions for annulment and contractual actions, whereby the division of responsibilities between the judge hearing an action for annulment under Article 263 and the judge hearing a contractual action under Article 272 TFEU is based on the principle that the former has jurisdiction exclusively to review EU law and the latter has jurisdiction exclusively to review the contract and the national law applicable to it.

131. Furthermore, the concern that an examination of the contractual obligations and national law in an action for annulment brought under Article 263 TFEU against an enforcement decision could render Article 272 TFEU meaningless or result in an interference with the jurisdiction of the national courts is unfounded. (94) As was explained above, an enforcement decision requires the presence of an arbitration clause by which the jurisdiction of the national courts is waived, and  Article 272 TFEU is indispensable in this regard. (95)

132. Lastly, the understanding of the distinction underlying the judgment under appeal between actions for annulment and contractual actions also cannot be justified on the ground that the court cannot issue directions to the Commission or assume the role assigned to it in an action for annulment as it can in a contractual action. (96) The annulment of an enforcement decision on account of the non-existence of the asserted contractual claim in the context of Article 263 TFEU has the same consequences as a finding that the Commission is not entitled to that claim in the context of Article 272 TFEU. If, moreover, an applicant were to request the adoption of further measures vis-à-vis the Commission, it could still, in addition to its application for annulment of the contested decision under Article 263 TFEU, make an application for the adoption of such measures under Article 272 TFEU.

133. In the light of the foregoing, the legality of an enforcement decision which was adopted to recover a debt arising under a contract is to be assessed in an action for annulment under Article 263 TFEU both on the basis of EU law in general and on the basis of the terms of the contract and all other rules of EU law and national law applicable to the contract. In such an action, the EU judicature must therefore review both the procedural and the substantive legality of the contested decision. Its review thus extends in particular to the merits of the contractual claim asserted. The General Court has conducted such a review in certain cases in the past. (97)

134. On the other hand, the approach taken in the judgment under appeal, whereby the Commission’s co-contractor is required to bring both an action under Article 263 and an action under Article 272 TFEU in order to obtain a full review by the EU judicature of an enforcement decision, constitutes an infringement of the right to an effective remedy in that it complicates legal protection unnecessarily.

135. It thus constitutes an infringement of the right to an effective remedy, first, if, in an action brought against an enforcement decision under Article 263 TFEU, the EU judicature does not review the substantive legality of that decision, that is to say, whether the debt thereby declared enforceable actually exists.

136. It constitutes an infringement of the right to an effective remedy, second, to require the Commission’s co-contractors to bring both an action under Article 263 and an action under Article 272 TFEU against an enforcement decision even though, as has just been explained, there is no justification for any such requirement. This unlawfully renders it excessively difficult for the Commission’s co-contractors to access a tribunal and to assert their rights. (98) This holds all the more since, given the complexity of the General Court’s case-law on this point, applicants regularly run the risk that their claim will be declared inadmissible because they have erroneously based it on the wrong type of action. (99)
(ii) The need to consider all relevant questions of fact and law in contractual actions under Article 272 TFEU

137. As the General Court rightly stated in paragraph 211 of the judgment under appeal, according to the case-law of the Court of Justice, the right of access to a tribunal under Article 47 of the Charter is guaranteed only if that tribunal has power to consider all the questions of fact and law that are relevant to the case before it. (100)

138. The General Court will not, however, satisfy this requirement in contractual actions under Article 272 TFEU in accordance with its case-law on the distinction between actions for annulment and contractual actions, which is at issue in the present case, is cited in paragraph 70 of the judgment under appeal and underlies that judgment. Indeed, as has already been explained, according to that case-law, the EU judicature may not, in contractual actions, examine complaints based on the infringement of EU law and EU fundamental rights in particular. (101)

139. As has already been shown, however, it is entirely wrong to assume that contracts concluded by the EU institutions are subject only to the terms of the contract and the provisions of the national law declared applicable by the parties. (102) Similarly, the General Court’s assumption that the EU institutions are subject to EU fundamental rights and other obligations imposed on them as public authorities by EU law only in the adoption of unilateral acts but not in connection with contracts (103) is unfounded. There is no question that the EU institutions are bound by these obligations, irrespective of whether they employ unilateral or contractual instruments to exercise their responsibilities. According to Article 51 of the Charter, the provisions of the Charter are addressed broadly to the institutions, bodies, offices and agencies of the European Union, without making any differentiation according to the chosen instrument. Anything else would effectively enable the EU institutions to evade the obligations imposed on them by the fundamental rights by ‘taking refuge in private law’. (104)

140. This has been confirmed, albeit implicitly, by the Court of Justice in so far as it has examined arguments based on the infringement of the right to good administration in contractual actions. (105)

141. The General Court, by contrast, has attempted to subsume such arguments under the general contract-law principle of performance in good faith of contracts and thus to consider the relevant duties of the EU institutions as being established by the contract or the national law applicable to it. (106) This shows that the General Court has recognised how problematical it is to deny that the contracting EU institutions are subject to such duties. It is, however, a mere stopgap to associate those duties only with contract-law principles such as good faith because, in essence, this maintains the unjustified assumption that the EU institutions are comparable in a contractual framework to private co-contractors and are thus subject only to general contract-law principles, but not to fundamental rights and other obligations imposed on them as public authorities by EU law.

142. According to the case-law of the General Court at issue in the present case, the EU institutions are subject to fundamental rights and other obligations imposed on them as public authorities by EU law ‘only in the exercise of their administrative responsibilities’. (107) It is not clear, however, why the conclusion of contracts should not come under the exercise of the administrative responsibilities of those institutions. Unlike private co-contractors, the EU institutions always act in the exercise of their administrative responsibilities.

143. The Commission itself has, moreover, firmly taken the position in the present appeal proceedings that it cannot be denied the prerogative to have recourse to the general powers to act as a public authority under EU law also in a contractual context in order to recover pecuniary claims because this would mean, conversely, that it is also not bound, in a contractual context, by its general obligations as a public authority, such as the right of access to documents and fundamental rights in general. Yet the Commission contends that there is no basis at all for such a negation of its official,  public-authority character in a contractual framework.

144. Furthermore, the application of the line of case-law at issue developed by the General Court produces wholly unacceptable results. According to that case-law, the obligation to state reasons imposed on the EU institutions is intended to apply, in respect of the recovery of a grant, only if the grant in question has been paid out under a unilateral decision, but not if it has been paid out under an agreement. (108) Likewise, a co-contractor is intended to be able to criticise an EU institution for an infringement of the obligation to state reasons or the rights of the defence, for example, only if the clauses of the contract provide for such obligations and rights, (109) but not otherwise. (110) This would mean, however, that the EU institutions could evade their obligations under primary law by awarding grants by agreements rather than by unilateral decisions, and by making no provision in those agreements for obligations to state reasons for them or rights of the defence for their co-contractors.

145. The General Court based its view that an applicant in a contractual dispute may not rely on obligations imposed on the EU institutions by EU law inter alia on the case-law of the Court of Justice on the distinction between non-contractual and contractual liability, (111) according to which the mere mention of legal rules which do not arise from a contract does not influence the nature of the liability and thus jurisdiction for a dispute. It does not follow from this case-law, however, that the EU institutions are not subject to their obligations imposed by EU law in the context of contracts and that their co-contractors may not rely on these.

146. Furthermore, the case-law of the General Court according to which the EU institutions are subject to fundamental rights and other obligations of a public authority only in the context of unilateral measures, but not in the context of contracts, would appear to have originally developed from the idea that the plea of a failure to fulfil such obligations in contractual actions is ‘inopérant’, that is to say, ineffective, because such failure cannot in any event affect the existence of the contractual claims of the parties. (112)

147. This is incorrect, however, because failures to fulfil the obligations imposed by fundamental rights or other obligations of the contracting administration as a public authority are in no way inherently ineffective in contractual actions. On the contrary, as the Court of Justice itself has found, such failures can certainly have an effect on the parties’ contractual claims. (113) Furthermore, the case-law on infringements of the rights of the defence shows that the plea of an infringement of rights in general is certainly not inadmissible on the ground that the infringement of such rights is not necessarily reflected in the operative part of the judgment. (114) Lastly, the finding of an infringement of rights alone has a restorative effect for the applicant and a disciplinary effect for the administration. (115)

148. Finally, the General Court’s view that the court having jurisdiction to adjudicate on the contract under Article 272 TFEU cannot examine complaints based on the infringement of EU fundamental rights and other obligations imposed on EU institutions as public authorities is not compatible with the division of judicial powers under Article 263, Article 272 and Article 274 TFEU.

149. Thus, according to the Court of Justice, where there is a contract between the applicant and one of the EU institutions, EU measures can be considered to be open to challenge by an action for annulment under Article 263 TFEU only in exceptional cases, because otherwise the EU judicature would risk rendering Article 272 TFEU meaningless and, where the contract does not contain an arbitration clause, extending its jurisdiction beyond the limits laid down by Article 274 TFEU. (116) Consequently, as has already been explained above, only set-off decisions, enforcement decisions and measures which produce their effects entirely outside of the contractual relationship are considered to be open to challenge by an action for annulment under Article 263 TFEU. (117)

150. As Advocate General Cruz Villalón explained in his Opinion in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, the definition of an act open to challenge under Article 263 TFEU is thus stricter in a contractual context than elsewhere. In that context, it is not sufficient for the ability to challenge a measure that it produces binding legal effects for its addressee. (118) For example, debit notes by which a co-contractor is set a deadline for paying a debt, (119) audit reports by which irregularities in the use of subsidies and the resulting amounts receivable are established (120) or decisions unilaterally to terminate a contract (121) do not, in a contractual framework, constitute measures amenable to an action for annulment under Article 263 TFEU. (122)

151. This seems to be justified in so far as a remedy is available to the co-contractor before the court having jurisdiction to adjudicate on the contract against measures in connection with contracts whose challengeable character under  Article 263 TFEU is denied. However, that ‘parallel remedy’ (123) works only if that remedy is also effective. This means that the court having jurisdiction to adjudicate on the contract must have power to consider all the questions of fact and law that are relevant to the case before it. (124)

152. This view was also confirmed implicitly by the Commission’s answer to a question asked by the Court at the hearing in the present appeal proceedings. In response to the question how compliance with fundamental rights can be reviewed in contractual actions if, according to the General Court, complaints based on such rights are inadmissible, the Commission replied that such complaints could in fact be assessed in an action for annulment. This would mean, however, that not only enforcement decisions by the Commission, but all measures of the EU institutions vis-à-vis their co-contractors would have to be considered as measures open to challenge under Article 263 TFEU in order to provide an effective remedy for co-contractors. Such a conclusion would, however, be wholly incompatible with the case-law of the Court of Justice according to which precisely measures adopted by the EU institutions in a contractual context, except for enforcement decisions, cannot be considered to be open to challenge in accordance with Article 263 TFEU. (125)

153. Consequently, the court having jurisdiction to adjudicate on the contract must also be able to review, in addition to the contract and the provisions of EU law and subsidiary national law specifically applicable to contracts, all complaints that are based on the infringement of EU fundamental rights or other obligations imposed on the EU institutions as public authorities by EU law. (126)

154. This is all the more the case as the measures at issue, such as audits of the co-contractor’s accounts, unilateral suspension of payments, unilateral termination of the contract or unilateral establishment of amounts to be repaid by debit notes setting deadlines for payment, although regarded as contractual as far as legal process is concerned, often correspond to an exercise of the EU institutions’ unilateral powers which are laid down by statutory provisions or standard contractual clauses that are non-negotiable in an individual case. (127)

155. This explains, moreover, why co-contractors of the EU institutions often intuitively characterise actions brought against such measures as actions for annulment. In accordance with my suggested approach, such an action certainly cannot be declared inadmissible because the applicant complains that the institution in question has infringed fundamental rights or other obligations of a public authority imposed by EU law or raises other complaints which are described, in the previous case-law of the General Court, as ‘characteristic of an action for annulment’. (128) (129)
(c)    Interim conclusion

156. It follows from the foregoing that the exercise of the Commission’s power to adopt enforcement decisions in order to recover debts arising under a contract does not infringe the principle of protection of legitimate expectations if, as in the present case, the co-contractor was informed in the contract that this possibility exists.

157. On the other hand, it is an infringement of the right of the Commission’s co-contractor to an effective remedy if the Commission’s co-contractor is required to bring both an action for annulment under Article 263 and a contractual action under Article 272 TFEU against an enforcement decision in order to obtain a full review of the lawfulness of that decision.

158. Similarly, it is an infringement of the right to an effective remedy if, in a contractual action under Article 272 TFEU, the co-contractor is not able to complain that the contracting EU institution has infringed EU fundamental rights and other obligations of a public authority imposed by EU law.
3.      Conclusion regarding the second ground of appeal

159. It must therefore be stated that the second ground of appeal is well founded in part. The General Court erred in law by finding, in paragraphs 70 and 71 of the judgment under appeal that, in an action brought under Article 263 TFEU against an enforcement decision, only those pleas and arguments aimed at challenging the legality of the contested decision in the light of the EU Treaties or of any rule of law relating to their application, and thus of EU law, may be examined, whereas, in an action under Article 272 TFEU, only those pleas and arguments alleging infringements of the grant agreements or of the national law applicable to them may be examined.
B.      The first ground of appeal

160. In its first ground of appeal, ADR submits that the General Court erred in law by basing its judgment on an excessively strict and thus disproportionate interpretation of the principle that the European Union can subsidise only expenditure actually incurred. (130)

161. It thus claims that the General Court did not have sufficient regard to the fact that ADR had achieved good results in the subsidised projects. According to ADR, this runs counter to the intention expressed by the Commission and the European Parliament itself to simplify life for grant beneficiaries in future by focusing on the results achieved rather than on the justification for the costs incurred.

162. This submission has no prospect of success.

163. It should be noted, first of all, that in its appeal ADR does not challenge the factual findings on the basis of which the General Court rejected its arguments regarding the ineligibility of certain expenditure. Furthermore, these assessments of the facts are in any case not subject to review by the Court of Justice on appeal, except where the clear sense of the evidence submitted has been distorted or the substantive inaccuracy of the General Court’s findings is apparent from the documents in the case file, (131) which is not the case here.

164. The question is thus merely whether, notwithstanding the facts on the basis of which the General Court confirmed the ineligibility of the contested expenditure, it should have considered that expenditure to be eligible because it is undisputed that ADR achieved good results in the subsidised action.

165. This question must be answered in the negative. As the Court of Justice has stated, in accordance with the principle that the European Union can subsidise only expenditure actually incurred in respect of grants, the fact that the subsidised measure has in the meantime been completed does not affect the beneficiary’s obligation to substantiate the use of the sums allocated to him. (132) Consequently, if the costs declared by the beneficiary are unverifiable, the Commission has no choice but to recover an amount of the grant equal to the unsubstantiated amounts. The Commission therefore also cannot refrain from making such recovery on the basis of considerations of proportionality. (133)

166. In the present case, the General Court found that costs for two experts had rightly been declared ineligible because one of the experts had demonstrably worked for another project on a day for which ADR had calculated costs for one of the projects at issue. In view of that concrete indicator that the charging of the costs in question did not reflect the reality, ADR had not adduced the requested proof that this was an isolated error. Rather, the reservations expressed by the auditors were supported by other items, such as deferred payments and lack of proof. (134) Lastly, none of the other arguments raised by ADR against the audit reports could call into question the findings of those reports. (135)

167. The General Court thereupon concluded that the fact invoked by ADR that the project concerned was successfully carried out with good results was not sufficient for acceptance of the costs at issue as eligible costs, unless the other eligibility criteria were also met. (136)

168. No error in law is discernible in these statements. In particular, the General Court cannot be criticised for adopting an excessively strict interpretation of the principle that the European Union can subsidise only expenditure actually incurred. Rather, the General Court correctly applied the case-law of the Court of Justice according to which, where it is not adequately substantiated that expenditure was actually incurred, the proof that an action has been carried out is not sufficient to justify the grant of a specific subsidy.

169. Under these circumstances, there is no need to examine the distinction highlighted by the Commission between subsidies, which are intended to enable the beneficiary to carry out an activity that is strategically important to the European Union, and public contracts, where a service is provided in exchange for payment, the relevance of which to the present case is questioned by ADR. Likewise, there is no need to discuss the question disputed between the parties of the extent to which the results of the project carried out were ultimately utilised and exploited by the Commission or by ADR itself.

170. Lastly, the above conclusion is also not affected by the fact invoked by ADR that, in preparing the new Financial Regulation 2018/1046, (137) the Commission and the Parliament expressed the intention to strive for a stronger focus on results of payments in the field of grants (138) and that those efforts are now actually reflected in the provisions of Regulation 2018/1046. (139) Indeed, it is common ground that these provisions are not applicable in the present case.

171. In the light of the foregoing, the first ground of appeal must be rejected.
C.      The effects of the merits of the second ground of appeal on the continued validity of the judgment under appeal

172. According to the case-law of the Court of Justice, an error in law made by the General Court cannot result in the judgment under appeal being set aside if the operative part of the judgment is shown to be well founded for other legal reasons. (140)

173. That is the case here as in the judgment under appeal the General Court itself set out the reasons on which the operative part of the judgment is based, despite the error in law established above. (141)

174. In paragraphs 71 to 80 of the judgment under appeal, the General Court thus erred in law by dividing the pleas and arguments raised by ADR into ‘contractual pleas’, to be linked to an action under Article 272 TFEU, and ‘pleas for annulment’, to be linked to an action under Article 263 TFEU. Similarly, the General Court split its subsequent examination of those pleas and arguments into an examination under Article 272 TFEU, in which it considered only ‘contractual pleas’ (paragraphs 81 to 188 of the judgment under appeal), and an examination under Article 263 TFEU, in which it analysed only ‘pleas for annulment’ (paragraphs 189 to 218 of the judgment under appeal).

175. Nevertheless, in the course of these formally separate examinations, the General Court still assessed all the pleas and arguments raised by ADR and examined their merits, especially since in paragraph 75 of the judgment under appeal the General Court held that ADR’s first complaint of its second plea, according to which the Commission issued the final audit reports to ADR with an unreasonable delay and thereby infringed the principle of sound administration and the rights of defence of ADR, (142) should be raised in support of ADR’s heads of claim both under Article 272 and under Article 263 TFEU.

176. Following on from this, the General Court first examined the complaint in paragraphs 172 to 184 of the judgment under appeal as part of its assessment of the action under Article 272 TFEU. The General Court then considered ADR’s arguments once again in paragraphs 215 to 218 of the judgment under appeal as part of its assessment of the action under Article 263 TFEU.

177. The General Court thus based its examination, from a structural point of view, on a strict distinction between pleas for annulment and contractual pleas and, in doing so, erred in law. However, in the present case this distinction did not, in essence, affect the admissibility of the complaints raised by ADR and their examination on the merits.

178. In addition, ADR has neither demonstrated nor even asserted that in the present case the separate examination of its arguments in an action under Article 272 TFEU, on the one hand, and an action under Article 263 TFEU, on the other, actually led to an incomplete assessment by the General Court of its submissions at first instance.

179. Furthermore, except for those findings which were the subject of the second ground of appeal, ADR has not challenged, at least successfully, the General Court’s findings regarding the merits of its substantive pleas and complaints, as is shown by the conclusion on the examination of the first ground of appeal. (143)

180. Consequently, the error in law established above (144) has not affected the operative part of the judgment under appeal. The second ground of appeal, even though it is well founded, thus cannot result in the judgment being set aside.
VI.    Costs

181. Under Article 184(2) of its Rules of Procedure, the Court of Justice is to make a decision as to costs where it dismisses an appeal.

182. Article 138(3) of the Rules of Procedure of the Court of Justice, applicable to proceedings on appeal under Article 184(1) of those rules, provides that, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may also order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.

183. In the present case, the Commission succeeds on some heads in so far as the appeal is to be dismissed because, as has just been stated, despite the error in law established, the operative part of the judgment under appeal is shown to be well founded for other legal reasons.

184. However, the second ground of appeal, which forms the main part of the appeal, has proved to be well founded precisely on account of the same error in law.

185. In the light of these circumstances, it appears to be justified to rule that ADR must bear two thirds of its own costs and pay two thirds of the costs incurred by the Commission and that the Commission must bear one third of its own costs and pay one third of the costs incurred by ADR.
VII. Conclusion

186. On the basis of the above considerations, I propose that the Court should:
1.      Dismiss the appeal;
2.      Order ADR Center SpA to bear two thirds of its own costs and to pay two thirds of the costs incurred by the European Commission;
3.      Order the European Commission to bear one third of its own costs and to pay one third of the costs incurred by ADR Center SpA.

1      Original language: German.

2      With regard to this timeframe, see below, point 68 of this Opinion.

3      Judgment of the General Court of 20 July 2017, ADR Center v Commission (T‑644/14, EU:T:2017:533), ‘the judgment under appeal’.

4      See ADR Center v Commission (Case T‑364/15) and Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (Case T‑191/16). Inclusion Alliance for Europe v Commission (Case C‑378/16 P), which raises the same questions as the present appeal, and SC v Eulex Kosovo (Case C‑730/18 P), in which related questions arise, are also currently pending  before the Court of Justice.

5      See, originally, Article 72(2) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) and, now, Article 100(2) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

6      OJ 2012 L 298, p. 1. The grant agreements at issue in the present case were concluded in December 2008, at a time when Regulation No 1605/2002 was still applicable (see below, point 9 of this Opinion); however, the reference in the grant agreements to the applicable EU law, as far as can be seen, was dynamic (see below, point 11 of this Opinion), with the result that Financial Regulation No 966/2012 also became applicable upon its entry into force. The contested Commission decision was in any case adopted on 27 June 2014, at a time when Financial Regulation No 966/2012 applied (see below, point 18 of this Opinion), with the result that that regulation is relevant. This is consistent with the requirement that the provision which forms the legal basis of an act and empowers the EU institution to adopt the act in question must be in force when the act is adopted; see judgment of 14 June 2016, Commission v McBride and Others (C‑361/14 P, EU:C:2016:434, paragraph 40).

7      Paragraphs 2, 3, 6 and 9 of the judgment under appeal.

8      Paragraph 12 of the judgment under appeal.

9      Paragraphs 5, 8 and 11 of the judgment under appeal.

10      Paragraph 14 of the judgment under appeal.

11      Paragraph 15 of the judgment under appeal.

12      Paragraph 17 of the judgment under appeal.

13      Paragraph 18 of the judgment under appeal.

14      Paragraphs 19 to 21 of the judgment under appeal.

15      Paragraphs 22 to 31 of the judgment under appeal.

16      Paragraphs 32 to 36 of the judgment under appeal.

17      Paragraphs 37 to 40 of the judgment under appeal.

18      Paragraphs 41 and 42 of the judgment under appeal, Annex 33 to the application at first instance.

19      See order of the President of the General Court of 7 April 2016, ADR Center v Commission (T‑644/14 R, not published, EU:T:2016:201, paragraphs 10 to 12).

20      Order of the President of the General Court of 7 April 2016, ADR Center v Commission (T‑644/14 R, not published, EU:T:2016:201, paragraph 26 et seq.).

21      Paragraphs 53 to 62 of the judgment under appeal.

22      Paragraphs 63 to 67 of the judgment under appeal.

23      The General Court was right not to address the fact that ADR disputed the Commission’s competence to adopt the contested decision only in its reply. The question as to the competence of the authority which adopted the measure must in any event be raised by the EU Courts of their own motion and may therefore be raised at any stage in the proceedings; see judgment of 14 December 2016, SV Capital v EBA (C‑577/15 P, EU:C:2016:947, paragraphs 31 and 32, and the case-law cited).

24      Similar statements, albeit without further examination, can be found in earlier judgments of the General Court; see judgments of 13 June 2012, Insula v Commission (T‑246/09, not published, EU:T:2012:287, paragraphs 94 and 95); of 27 September 2012, Applied Microengineering v Commission (T‑387/09, EU:T:2012:501, paragraph 39); and of 4 July 2017, Systema Teknolotzis v Commission (T‑234/15, EU:T:2017:461, paragraph 91); see also judgment of 13 June 2019, Synergy Hellas v Commission (T‑244/18, not published, EU:T:2019:409, paragraph 40).

25      Article 272 TFEU relates to the institution of the Court of Justice of the European Union as a whole. Under Article 256(1) TFEU in conjunction with Article 51 of the Statute of the Court of Justice of the European Union, the General Court has jurisdiction to hear and determine at first instance the action referred to in Article 272.

26      As far as can be seen, only the General Court held, in its orders of 19 October 2010, Nencini v Parliament (T‑431/10 R, not published, EU:T:2010:441, paragraph 19); of 19 May 2015, Costa v Parliament (T‑197/15 R, not published, EU:T:2015:294, paragraph 26); and of 16 February 2017, Gollnisch v Parliament (T‑624/16 R, not published, EU:T:2017:94, paragraphs 51 and 52), that, unlike the Council, the Commission and the ECB, the Parliament does not have the competence to adopt enforcement decisions under Article 299 TFEU. The General Court did not, however, examine the question of a possible basis for competence in Article 79(2) of Financial Regulation No 966/2012 or its predecessor provision (see above, footnote 5 of this Opinion) in Regulation No 1605/2002 (in this regard, see point 41 of this Opinion). In its decision on the appeal in Case T‑624/16 R, the Court of Justice did not respond, on grounds of admissibility, to an argument concerning the Parliament’s competence to adopt enforcement decisions; see order of the Vice-President of the Court of Justice of 6 July 2017, Gollnisch v Parliament (C‑189/17 P(R), not published, EU:C:2017:528, paragraphs 46 and 47). It is also apparent from Article 68 of the Decision of the Bureau of the European Parliament of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (OJ 2009 C 159, p. 1) only that the Secretary-General is to issue instructions with a view to recovery from Members of sums unduly paid, and not whether enforcement decisions should or may be adopted to that end. As far as can be seen, thus far the Court of Justice has also dealt only with cases in which the Parliament had decided that sums had been unduly paid and sent the corresponding debit notes to the Members concerned, but had not adopted enforcement decisions; see, for example, order of the President of the Court of Justice of 11 November 2011, Nencini v Parliament (C‑530/10 P(R), not published, EU:C:2011:729, paragraphs 3 and 4); judgment of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraphs 16, 17, 22 and 23); and order of 21 May 2019, Le Pen v Parliament (C‑525/18 P, not published, EU:C:2019:435, paragraphs 13 and 14; see also today’s order in Le Pen v Parliament (C‑38/19 P)).

27      Under Article 2(b) of Financial Regulation No 966/2012, ‘institution’ means, for the purposes of that regulation, the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union, the Court of Auditors, the European Economic and Social Committee, the Committee of the Regions, the European Ombudsman, the European Data Protection Supervisor and the European External Action Service (EEAS), but not the ECB. See also Article 2(67) of the subsequent Regulation 2018/1046 and Article 1(2) of the previous Regulation No 1605/2002, as amended by Regulation (EU, Euratom) No 1081/2010 (OJ 2010 L 311, p. 9); the original version of Regulation No 1605/2002, on the other hand, did not include the European Council, which was established as an EU institution only by the Treaty of Lisbon, and the European External Action Service, which was not set up until 2010.

28      Article 79(2) of Financial Regulation No 966/2012, like its successor provision in Article 100(2) of Regulation 2018/1046 (see above, footnote 5 of this Opinion), is unclear in so far as its first subparagraph provides, without qualification, that ‘the institution’ may formally establish an amount as being receivable from persons other than Member States by means of a decision which is to be enforceable within the meaning of Article 299 TFEU, but its second subparagraph stipulates that the Commission may also, in exceptional circumstances, adopt such an enforceable decision for the benefit of other institutions at their request with respect to claims arising in relation to staff to whom the Staff Regulations apply. Article 85(2) of Delegated Regulation (EU) No 1268/2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1) even makes clear that in exceptional circumstances ‘the institutions concerned other than those mentioned under Article 299 of the TFEU’ may request the Commission to adopt an enforceable decision. It is not clear, at least at first sight, why those provisions would be needed if the first subparagraph of Article 79(2) of Financial Regulation No 966/2012 in any case conferred on all institutions within the meaning of that regulation (see above, footnote 27 of this Opinion) the power to adopt enforcement decisions themselves. The predecessor provision of Article 79(2) of Financial Regulation No 966/2012 in Article 72(2) of Regulation No 1605/2002 (see above, footnote 5 of this Opinion) did not, however, contain a provision corresponding to the second subparagraph of Article 79(2) of Financial Regulation No 966/2012, nor was anything similar to be found in the rules for the implementation of Regulation No 1605/2002 in Regulation No 2342/2002 (OJ 2002 L 357, p. 1).

29      Article 62(2) of Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of the Financial Regulation (OJ 2013 L 328, p. 42) and now Article 68 of Commission Delegated Regulation (EU) 2019/715 of 18 December 2018 on the framework financial regulation for the bodies set up under the TFEU and Euratom Treaty and referred to in Article 70 of Regulation 2018/1046 (OJ 2019 L 122, p. 1) provide for the possibility of enforcement in order to recover amounts receivable, but it is unclear whether the decentralised agencies themselves may adopt enforcement decisions to that end. The Commission’s executive agencies, on the other hand, would not appear to be able to adopt such decisions, as this is reserved for the Commission; see, with regard to the Research Executive Agency, order of 12 September 2018, Holistic Innovation Institute v REA (C‑241/17 P, not published, EU:C:2018:704, paragraph 4).

30      As regards the ECB for example, at the same time as it was established by the Treaty of Maastricht, an explicit reference was included in Article 108a(2) (later Article 110(2)) EC, under which Article 192 (later Article 256) EC, the predecessor provision of Article 299 TFEU, was also to apply to regulations and decisions adopted by the ECB, with the subsequent inclusion of the ECB in Article 299 TFEU by the Treaty of Lisbon being merely an editorial change.

31      Article 92 of the ECSC Treaty, Article 192 of the EC Treaty (1957) and Article 164 of the Euratom Treaty.

32      See above, point 36 of this Opinion.

33      See below, points 82 and 84 of this Opinion.

34      See also, to that effect, judgment of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraph 65).

35      See Article 161(1) in conjunction with Article 156(1) and (2) of the Rules of Procedure of the General Court and Article 165(1) in conjunction with Article 160(1) and (2) of the Rules of Procedure of the Court of Justice.

36      In the judgment under appeal the General Court did not address the admissibility of the action brought under Article 263 TFEU seeking annulment of the contested decision, but implicitly presumed that the action was admissible; see, for example, paragraphs 61 and 68 of the judgment under appeal.

37      See, in particular, judgments of the General Court of 13 June 2012, Insula v Commission (T‑246/09, not published, EU:T:2012:287, paragraph 93); of 27 September 2012, Applied Microengineering v Commission (T‑387/09, EU:T:2012:501, paragraph 38); of 9 November 2016, Trivisio Prototyping v Commission (T‑184/15, not published, EU:T:2016:652, paragraph 45); of 4 July 2017, Systema Teknolotzis v Commission (T‑234/15, EU:T:2017:461, paragraph 90); and of 13 June 2019, Synergy Hellas v Commission (T‑244/18, not published, EU:T:2019:409, paragraph 40).

38      See below, points 95 to 105 of this Opinion.

39      Notwithstanding the grounds cited above in point 49 of this Opinion, this would apply even if it were to be assumed, in accordance with the view taken by the General Court in the judgment under appeal and contrary to the view taken in this Opinion (see below, points 113 to 136), that the review of the legality of an enforcement decision adopted to recover a debt arising under a contract can be divided into a review of the procedural legality of the decision by the court hearing the action for annulment and a review of the substantive legality of the decision by the court having jurisdiction over the contract. If, in the absence of an arbitration clause, the latter court were the national court, a conflict of jurisdiction between the EU Courts, having jurisdiction to review the procedural legality of the contested decision, and national courts, having jurisdiction to review the contractual claims underlying that decision, would not be compatible with the requirements for an effective remedy, as it would render it excessively difficult for the applicant to exercise his rights. This was correctly found — albeit implicitly — by the General Court in paragraphs 209 to 214 of the judgment under appeal.

40      See above, points 36 and 44 of this Opinion.

41      It would have to be clarified separately whether, in order to recover debts arising under a contract, the EU institutions may adopt set-off decisions, which, according to the previous case-law, would also appear to be open to challenge by an action for annulment under Article 263 TFEU (see judgment of 10 July 2003, Commission v CCRE (C‑87/01 P, EU:C:2003:400, paragraphs 42, 45 and operative part); and judgments of the General Court of 8 October 2008, Helkon Media v Commission (T‑122/06, not published, EU:T:2008:418, paragraphs 46 to 52); of 6 October 2015, Technion and Technion Research & Development Foundation v Commission (T‑216/12, EU:T:2015:746, paragraph 53); and of 14 November 2017, Alfamicro v Commission (T‑831/14, not published, EU:T:2017:804, paragraphs 191 to 193)), where the contract in question does not contain an arbitration clause in favour of the EU Courts. On the one hand, it would seem difficult, in the light of the protection of the financial interests of the European Union, to deny the EU institutions the possibility of set-off in the absence of an arbitration clause, thereby compelling them to pay out further EU funds to a defaulting or insolvent debtor. On the other hand, it appears problematical, in the light of the division of jurisdiction between the EU Courts and national courts and the right to an effective remedy, to establish the competence of the EU judicature by means of a set-off decision, even though a national court has jurisdiction to examine the merits of the claim at issue. In any case, it would have to be assumed in such a situation that the set-off has only practical and not legal effect; this would mean that the possible definitive nature of the set-off decision could not prejudice the merits or the existence of the claims of the parties underlying that decision.

42      Judgments of 11 July 1985, Maag v Commission (43/84, EU:C:1985:328, paragraph 26); of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 19); and of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraph 49).

43      Judgment of 11 July 1985, Maag v Commission (43/84, EU:C:1985:328, paragraph 26).

44      See above, point 11 of this Opinion. According to the Commission’s submissions at the hearing in the present proceedings, its internal practice is to adopt enforcement decisions to recover debts arising under contracts only if the contracts in question contain an arbitration clause in favour of the EU Courts.

45      See order of the General Court of 27 October 2014, Diktyo Amyntikon Viomichanion Net v Commission (T‑703/14 R, not published, EU:T:2014:914, paragraph 19).

46      See above, point 18 of this Opinion, paragraphs 41 and 192 of the judgment under appeal and the legal bases cited at the beginning of the contested decision (Annex 33 of the application at first instance).

47      Under Article 2(d)(i) of Financial Regulation No 966/2012, ‘basic act’ means, in implementation of the TFEU and the Euratom Treaty, a regulation, a directive or a decision within the meaning of Article 288 TFEU and, under Article 2(d)(ii), acts of the Council in implementation of Title V of the TEU (General provisions on the Union’s external action and specific provisions on the common foreign and security policy).

48      With regard to recourse to a provision’s drafting history as an element of interpretation, see judgments of 22 October 2009, Zurita García and Choque Cabrera (C‑261/08 and C‑348/08, EU:C:2009:648, paragraph 57); and of 3 October 2013, Confédération paysanne (C‑298/12, EU:C:2013:630, paragraph 27); and my Opinion in Commission v Spain (Waste management plans) (C‑642/18, EU:C:2019:682, point 38 et seq.).

49      See above, footnote 5 of this Opinion.

50      See p. 20 of the Communication of the Commission of 3 December 2002, ‘Improving the recovery of Community entitlements arising from direct and shared management of Community expenditure’, COM(2002)671 final, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2002:0671:FIN:EN:PDF; see also Beysen, E., ‘Theorie und Praxis der Rückforderung vertraglicher Finanzhilfen durch die Europäische Kommission’, Europäisches Wirtschafts- und Steuerrecht (EWS) 4/2008, p. 120 et seq.

51      See judgment of 6 May 1982, BayWa and Others (146/81, 192/81 and 193/81, EU:C:1982:146, paragraph 10).

52      Convention of 26 July 1995 based on Article K.3 of the Treaty on European Union on the protection of the European Communities’ financial interests (OJ 1995 C 316, p. 48).

53      OJ 2017 L 198, p. 29.

54      See, to that effect and by analogy, judgments of 29 March 2012, Belvedere Costruzioni (C‑500/10, EU:C:2012:186, paragraph 23), and of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936, ‘Taricco II’, paragraph 52).

55      Judgment of 9 September 2015 (C‑506/13 P, EU:C:2015:562, paragraph 21).

56      Judgment of 17 March 2005, Commission v AMI Semiconductor Belgium and Others (C‑294/02, EU:C:2005:172, paragraph 95), and my Opinion in that case (C‑294/02, EU:C:2004:549, points 167 to 171).

57      Judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 21).

58      Judgment of the General Court of 17 June 2010, CEVA v Commission (T‑428/07 and T‑455/07, EU:T:2010:240, paragraph 68).

59      This footnote is not relevant for the English version of this Opinion.

60      See judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraphs 15, 23 and 24); and judgment of the General Court of 17 June 2010, CEVA v Commission (T‑428/07 and T‑455/07, EU:T:2010:240, paragraphs 66 to 69).

61      See judgment of 17 March 2005, Commission v AMI Semiconductor Belgium and Others (C‑294/02, EU:C:2005:172, paragraph 95), and my Opinion in Commission v AMI Semiconductor Belgium and Others (C‑294/02, EU:C:2004:549, points 167 to 171).

62      With regard to the different models of contracts of public authorities in the EU Member States, see the country reports in Noguellou, R., and Stelkens, U., Droit comparé des contrats publics/Comparative law on public contracts, Bruylant, Brussels, 2010.

63      See Article L.252 A of the Livre des procédures fiscales, Article 112 et seq. of Décret no 2012-1246 relatif à la gestion budgétaire et comptable publique of 7 November 2012 and Articles R.2342-4, R.3342-8-1 and R.4341-4 of the Code général des collectivités territoriales. See also Galati, D., Les actes émis par l’administration en vue du recouvrement de ses créances non fiscales et non domaniales — Éléments de contentieux administratif et financier, Univ. thesis, University of Lille 2, 2001; Chapus, R., Droit administratif général, Montchrestien, Paris, 15th edition, 2001, p. 470 et seq. point 641, and Gaudemet, Y., ‘Exécution forcée et puissance publique: les prérogatives de la puissance publique pour requérir l’exécution’, Revue des contrats 1/2005, p. 133 et seq.

64      See above, point 68 of this Opinion.

65      See ReNEUAL Model Rules on EU Administrative Procedure, Book IV — Contracts, p. 143 et seq., in particular points 2, 3 and 8, available at http://www.reneual.eu/index.php/projects-and-publications/reneual-1-0.

66      See below, point 154 of this Opinion.

67      Under Article 201(2)(j) and point 16.4(d) of Annex I of Regulation 2018/1046 (formerly Article 138(4)(d) and point ii of the second subparagraph of Article 180(1) of Regulation No 1268/2012), grant agreements and draft public procurement contracts to be awarded by the EU institutions must include an indication of the court that has jurisdiction to hear disputes.

68      See also, along those lines, judgment of the General Court of 9 November 2016, Trivisio Prototyping v Commission (T‑184/15, not published, EU:T:2016:652, paragraphs 57 to 59). The legal literature also compellingly presents the view that, in the light of the different traditions in the Member States concerning contracts of public authorities and the case-law of the EU Courts, it is necessary to inform the co-contractor, before the contract is concluded, of the Commission’s power to adopt enforcement decisions; see Beysen, E., ‘Theorie und Praxis der Rückforderung vertraglicher Finanzhilfen durch die Europäische Kommission’, Europäisches Wirtschafts- und Steuerrecht (EWS) 4/2008, p. 120 (128 and 129), and Puffer-Mariette, J.-C. and Seyr, S., ‘Die Verträge der europäischen Verwaltung vor dem Unionsrichter’, in Hess, B., Jayme, E. and Mansel, H.-P., Europa als Rechts- und Lebensraum, Liber amicorum für Christian Kohler, Gieseking, Bielefeld, 2018, p. 441 (455 and 456).

69      Opinion of Advocate General Cosmas in Duff and Others (C‑63/93, EU:C:1995:170, point 25).

70      See above, point 12 of this Opinion.

71      See above, point 52 of this Opinion.

72      See above, point 50 of this Opinion.

73      See above, points 48 to 56 of this Opinion.

74      Judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 20); order of 29 September 2016, Investigación y Desarrollo en Soluciones y Servicios IT v Commission (C‑102/14 P, not published, EU:C:2016:737, paragraph 55); and judgment of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraph 50).

75      See, for example, judgments of the General Court of 10 April 2013, GRP Security v Court of Auditors (T‑87/11, not published, EU:T:2013:161, paragraphs 18 and 40 et seq.), and of 8 March 2018, Rose Vision v Commission (T‑45/13 RENV and T‑587/15, not published, EU:T:2018:124, paragraphs 16 et seq. and 201 et seq. (here in the context of the second paragraph of Article 340 TFEU)); see also order of the General Court of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586, paragraphs 12 and 38 et seq., appeal pending in Case C‑730/18 P).

76      See the case-law cited above in footnote 41 of this Opinion.

77      See above, point 50 of this Opinion and the case-law cited in footnote 37.

78      See above, point 97 of this Opinion.

79      See also, along these lines, judgment of the General Court of 4 July 2017, Systema Teknolotzis v Commission (T‑234/15, EU:T:2017:461, paragraph 91).

80      See above, point 49 of this Opinion.

81      See above, points 21 and 22 of this Opinion.

82      See, to that effect, order of the President of the Court of Justice of 3 May 1996, Germany v Commission (C‑399/95 R, EU:C:1996:193, paragraph 46 and the case-law cited).

83      See above, point 93 of this Opinion.

84      This is clear from paragraphs 70, 71, 77, 78, 80 and 188 of the judgment under appeal in particular; see also judgments of the General Court of 27 September 2012, Applied Microengineering v Commission (T‑387/09, EU:T:2012:501, paragraph 40 et seq.); and of 16 March 2016, Hydrex v Commission (T‑45/15, not published, EU:T:2016:151, paragraphs 24, 25, 49 and 50); and order of the General Court of 21 April 2016, Inclusion Alliance for Europe v Commission (T‑539/13, not published, EU:T:2016:235, paragraph 90 et seq., appeal pending in Case C‑378/16 P); and judgment of the General Court of 9 November 2016, Trivisio Prototyping v Commission (T‑184/15, not published, EU:T:2016:652, paragraph 40 et seq.).

85      See paragraph 57 et seq. of the judgment under appeal and judgments of the General Court of 6 October 2015, Technion and Technion Research & Development Foundation v Commission (T‑216/12, EU:T:2015:746, paragraph 52 et seq.), and of 9 November 2016, Trivisio Prototyping v Commission (T‑184/15, not published, EU:T:2016:652, paragraph 60 et seq.); see also judgments of the General Court of 19 September 2001, Lecureur v Commission (T‑26/00, EU:T:2001:222, paragraph 37 et seq.); of 17 June 2010, CEVA v Commission (T‑428/07 and T‑455/07, EU:T:2010:240, paragraph 57 et seq.); and of 24 October 2014, Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraph 40 et seq.).

86      See orders of the General Court of 10 April 2008, Imelios v Commission (T‑97/07, not published, EU:T:2008:105, paragraph 33); of 12 October 2011, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (T‑353/10, EU:T:2011:589, paragraph 36 et seq.); and of 13 January 2014, Investigación y Desarrollo en Soluciones y Servicios IT v Commission (T‑134/12, not published, EU:T:2014:31, paragraph 50); and judgments of the General Court of 24 October 2014, Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraph 47); of 9 November 2016, Trivisio Prototyping v Commission (T‑184/15, not published, EU:T:2016:652, paragraph 119); and of 20 May 2019, Fundación Tecnalia Research & Innovation v REA (T‑104/18, not published, EU:T:2019:345, paragraphs 46 et seq. and 66 et seq.). Such a distinction between ‘contractual pleas’ and ‘pleas for annulment’ calls to mind the distinction made in French administrative procedural law between ‘contentieux subjectif’ in the context of contractual actions and ‘contentieux objectif’ or ‘contentieux de la légalité’ in the context of actions for annulment (‘recours pour excès de pouvoir’). This distinction, however, does not prevent a judge, in French administrative procedural law, in the context of contractual actions, from carrying out a full review of the lawfulness of administrative decisions which are classified as contractual and therefore not to be challenged separately by means of an action for annulment; see Chapus, R., Droit du contentieux administratif, Montchrestien, Paris, 13th edition, 2008, pp. 210 and 211 point 229, p. 237 point 263, pp. 732 and 733 point 827, and Folliot, L., Pouvoirs des juges administratifs et distinction des contentieux en matière contractuelle, Univ. thesis, University of Paris II, 1994, pp. 605 et seq. and 610. This is all the more the case now that ‘contentieux objectif’ and ‘contentieux subjectif’ in French administrative procedural law have been increasingly approximated in recent years, see Glaser, E., ‘Les habits neufs du juge du contrat’, AJDA 6/2011, p. 310 et seq. Conversely, in French administrative procedural law, a judge can, in the context of an action against an enforceable instrument adopted by the administration to recover debts arising under a contract (see above, footnote 63 of this Opinion), review both the procedural legality of the instrument and the existence of the contested debt (see Article 117 of Décret no 2012-1246 relatif à la gestion budgétaire et comptable publique of 7 November 2012 and Article L.1617-5 1 of the Code général des collectivités territoriales; see also Chapus, R., Droit administratif général, Montchrestien, Paris, 15th edition, 2001, p. 470 et seq. point 641, and Cheynel, B., ‘The contestation of the orders to pay issue for the recovery of illegal State aids declared incompatible by the Commission’, Concurrences 4/2018, Article No 88144, p. 236 et seq.).

87      T‑387/09, EU:T:2012:501, paragraphs 40 and 41.

88      11/70, EU:C:1970:114, paragraph 3.

89      See judgment of 17 December 1970, Internationale Handelsgesellschaft (11/70, EU:C:1970:114, paragraphs 1 to 3).

90      My emphasis.

91      An enforcement decision is not the only example of an EU measure the lawfulness of which is also reviewed on the basis of the terms of a contract in an action for annulment; with regard to a decision on the temporary exclusion of a co-contractor which has breached a contract from further EU contracts and grants, see judgment of the General Court of 10 April 2013, GRP Security v Court of Auditors (T‑87/11, not published, EU:T:2013:161, paragraphs 18 and 55 et seq., in particular paragraphs 62 to 66).

92      For a case where this applies, see, for example, judgment of the General Court of 20 May 2019, Fundación Tecnalia Research & Innovation v REA (T‑104/18, not published, EU:T:2019:345, paragraph 55).

93      See Article 138(4)(c) and point i of the second subparagraph of Article 180(1) of Regulation No 1268/2012 (now Article 201(2)(i) and point 16.4.(c) of Annex I to Regulation 2018/1046). An exception applies only to grant agreements concluded with international organisations and certain building contracts.

94      The Court of Justice fears these consequences in the event that, in addition to enforcement decisions, other EU acts falling within contractual relationships were also made subject to an action for annulment; see judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 19).

95      See above, points 48 to 56 and 96 of this Opinion.

96      See paragraphs 56 and 62 of the judgment under appeal and the case-law cited and judgment of 26 February 2015, Planet v Commission (C‑564/13 P, EU:C:2015:124, paragraph 23), and my Opinion in Planet v Commission (C‑564/13 P, EU:C:2014:2352, point 19 et seq.).

97      See judgments of the General Court of 21 September 2011, Berliner Institut für Vergleichende Sozialforschung v Commission (T‑34/08, not published, EU:T:2011:504); of 28 March 2012, Berliner Institut für Vergleichende Sozialforschung v Commission (T‑296/08, not published, EU:T:2012:162); of 13 September 2013, Berliner Institut für Vergleichende Sozialforschung v Commission (T‑73/08, not published, EU:T:2013:433); and of 12 December 2013, Berliner Institut für Vergleichende Sozialforschung v Commission (T‑171/08, not published, EU:T:2013:639). The contested measures in those cases were not enforcement decisions, but decisions by the Commission not to allow some of the expenditure of its co-contractors; however, that situation can be compared to the adoption of an enforcement decision to assert contractual claims.

98      See, with regard to these components of the right to an effective remedy, to that effect and by analogy, judgment of 6 May 2010, Club Hotel Loutraki and Others (C‑145/08 and C‑149/08, EU:C:2010:247, paragraphs 72 to 74 and 80).

99      See, with regard to such cases, for example, judgments of the General Court of 27 September 2012, Applied Microengineering v Commission (T‑387/09, EU:T:2012:501, paragraph 40 et seq.); and of 16 March 2016, Hydrex v Commission (T‑45/15, not published, EU:T:2016:151, paragraph 24 et seq.); and order of the General Court of 21 April 2016, Inclusion Alliance for Europe v Commission (T‑539/13, not published, EU:T:2016:235, paragraph 90 et seq., appeal pending in Case C‑378/16 P).

100      Judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 49).

101      See above, point 118 of this Opinion.

102      See above, points 126 to 128 of this Opinion.

103      See judgment of the General Court of 3 June 2009, Commission v Burie Onderzoek en Advies (T‑179/06, not published, EU:T:2009:171, paragraph 118); order of the General Court of 8 February 2010, Alisei v Commission (T‑481/08, EU:T:2010:32, paragraph 95); and judgments of the General Court of 11 December 2013, EMA v Commission (T‑116/11, EU:T:2013:634, paragraph 245); of 24 October 2014, Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraph 120); of 22 January 2019, EKETA v Commission (T‑166/17, not published, EU:T:2019:26, paragraph 51, appeal pending in Case C‑273/19 P); and of 20 May 2019, Fundación Tecnalia Research & Innovation v REA (T‑104/18, not published, EU:T:2019:345, paragraphs 66 to 74).

104      See my Opinion in Commune de Millau and SEMEA v Commission (C‑531/12 P, EU:C:2014:1946, point 88).

105      See judgment of 19 June 2014, Commune de Millau and SEMEA v Commission (C‑531/12 P, EU:C:2014:2008, paragraphs 95 to 109) (although the examination was formally in an action for non-contractual liability, it ultimately related to contractual claims; see points 85 and 86 of my Opinion in Commune de Millau and SEMEA v Commission (C‑531/12 P, EU:C:2014:1946)); and judgment of 11 June 2015, EMA v Commission (C‑100/14 P, not published, EU:C:2015:382, paragraph 123), by which paragraph 245 of the judgment of the General Court of 11 December 2013, EMA v Commission (T‑116/11, EU:T:2013:634) is invalidated.

106      See paragraphs 170 to 178 of the judgment under appeal and judgments of the General Court of 18 November 2015, Synergy Hellas v Commission (T‑106/13, EU:T:2015:860, paragraphs 65 to 72); of 5 October 2016, European Children’s Fashion Association and Instituto de Economía Pública v EACEA (T‑724/14, not published, EU:T:2016:600, paragraphs 84 and 85); of 4 May 2017, Meta Group v Commission (T‑744/14, not published, EU:T:2017:304, paragraphs 187 to 193 and 205 to 210); of 14 November 2017, Alfamicro v Commission (T‑831/14, not published, EU:T:2017:804, paragraphs 166 to 168 and 175 to 179); of 22 January 2019, EKETA v Commission (T‑166/17, not published, EU:T:2019:26, paragraph 51, appeal pending in Case C‑273/19 P); and of 28 February 2019, Ateknea Solutions Catalonia v Commission (T‑69/16, not published, EU:T:2019:121, paragraphs 98, 125 and 126).

107      See the case-law cited above in footnote 103 of this Opinion.

108      As was expressly held in the judgment of the General Court of 24 October 2014, Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraph 122); similarly, order of the General Court of 10 May 2004, Musée Grévin v Commission (T‑314/03 and T‑378/03, EU:T:2004:139, paragraph 83).

109      See judgment of the General Court of 17 June 2010, CEVA v Commission (T‑428/07 and T‑455/07, EU:T:2010:240, paragraphs 73 and 79 et seq.).

110      See judgments of the General Court of 25 May 2004, Distilleria Palma v Commission (T‑154/01, EU:T:2004:154, paragraph 46); of 11 December 2013, EMA v Commission (T‑116/11, EU:T:2013:634, paragraph 275); and of 24 October 2014, Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraph 120); and order of the General Court of 15 February 2016, InAccess Networks Integrated Systems v Commission (T‑82/15, not published, EU:T:2016:90, paragraph 60); and judgment of the General Court of 5 October 2016, European Children’s Fashion Association and Instituto de Economía Pública v EACEA (T‑724/14, not published, EU:T:2016:600, paragraph 89).

111      See the reference to the judgment of the Court of Justice of 20 May 2009, Guigard v Commission (C‑214/08 P, not published, EU:C:2009:330, paragraph 43) in the order of the General Court of 8 February 2010, Alisei v Commission (T‑481/08, EU:T:2010:32, paragraph 94), which is in turn cited in the leading judgment of the General Court of 27 September 2012, Applied Microengineering v Commission (T‑387/09, EU:T:2012:501, paragraph 40), from which the whole line of case-law at issue in the present case stems.

112      See the leading judgment of the General Court of 3 June 2009, Commission v Burie Onderzoek en Advies (T‑179/06, not published, EU:T:2009:171, paragraphs 116 to 118); and, building on it, order of the General Court of 8 February 2010, Alisei v Commission (T‑481/08, EU:T:2010:32, paragraph 95); and judgments of the General Court of 17 June 2010, CEVA v Commission (T‑428/07 and T‑455/07, EU:T:2010:240, paragraph 90); of 13 June 2012, Insula v Commission (T‑246/09, not published, EU:T:2012:287, paragraph 274); of 11 December 2013, EMA v Commission (T‑116/11, EU:T:2013:634, paragraphs 245, 252 and 253); of 12 July 2016, Commission v Thales développement et coopération (T‑326/13, not published, EU:T:2016:403, paragraphs 73 and 74); of 22 January 2019, EKETA v Commission (T‑166/17, not published, EU:T:2019:26, paragraph 51, appeal pending in Case C‑273/19 P); and of 20 May 2019, Fundación Tecnalia Research & Innovation v REA (T‑104/18, not published, EU:T:2019:345, paragraphs 66 to 74). The fact that the Court of Justice itself has also used a similar argument, as far as can be seen, in two cases (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 104); and of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraph 76)), should not prevent it from now distancing itself therefrom.

113      See judgment of 19 June 2014, Commune de Millau and SEMEA v Commission (C‑531/12 P, EU:C:2014:2008, paragraphs 95 to 109), and my Opinion in Commune de Millau and SEMEA v Commission (C‑531/12 P, EU:C:2014:1946, points 84 to 91) (although the examination was formally in an action for non-contractual liability, it ultimately related to contractual claims); similarly, judgment of the General Court of 17 June 2010, CEVA v Commission (T‑428/07 and T‑455/07, EU:T:2010:240, paragraph 91).

114      See judgment of 14 June 2018, Makhlouf v Council (C‑458/17 P, not published, EU:C:2018:441, paragraph 42 and the case-law cited).

115      See, to that effect and by analogy, judgments of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraphs 67 to 73); of 6 March 1979, Simmenthal v Commission (92/78, EU:C:1979:53, paragraph 32); and judgment of the General Court of 23 May 2014, European Dynamics Luxembourg v ECB (T‑553/11, not published, EU:T:2014:275, paragraph 95).

116      See judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 19).

117      See above, points 97 and 98 of this Opinion.

118      See, to that effect, Opinion of Advocate General Cruz Villalón in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:110, points 46 to 60) in conjunction with judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 20).

119      See judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraphs 23 to 25); order of 29 September 2016, Investigación y Desarrollo en Soluciones y Servicios IT v Commission (C‑102/14 P, not published, EU:C:2016:737, paragraphs 56 to 61); and judgment of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraphs 50 to 52 and 58).

120      See orders of the General Court of 8 February 2010, Alisei v Commission (T‑481/08, EU:T:2010:32, paragraphs 51 to 55); of 14 June 2012, Technion and Technion Research & Development Foundation v Commission (T‑546/11, not published, EU:T:2012:303, paragraphs 49 and 50); and of 15 February 2016, InAccess Networks Integrated Systems v Commission (T‑82/15, not published, EU:T:2016:90, paragraphs 41 to 46).

121      See judgment of the General Court of 10 April 2013, GRP Security v Court of Auditors (T‑87/11, not published, EU:T:2013:161, paragraph 30).

122      In a non-contractual context, on the other hand, debit notes, for example, are readily considered to be open to challenge under Article 263 TFEU; see the case-law cited above in footnote 26 of this Opinion and judgment of the General Court of 18 October 2018, Terna v Commission (T‑387/16, EU:T:2018:699, paragraphs 28 to 36, appeal pending in Case C‑812/18 P); see also, to that effect, in relation to an invoice, order of the General Court of 8 March 2012, Octapharma Pharmazeutika v EMA (T‑573/10, not published, EU:T:2012:114, paragraphs 36 and 37).

123      See, with regard to the concept of ‘parallel remedy’, Opinion of Advocate General Cruz Villalón in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:110, point 4 and footnotes 4 and 48).

124      With regard to this requirement, see above, point 137 of this Opinion.

125      See above, point 149 of this Opinion.

126      This is not precluded by the fact that the court having jurisdiction over the contract can be a national court, as national courts naturally may give rulings on the interpretation of EU law and refer questions in this regard to the EU Courts pursuant to Article 267 TFEU.

127      See the applicants’ submissions in the judgments of the General Court of 11 December 2013, EMA v Commission (T‑116/11, EU:T:2013:634, paragraphs 246 to 249), and of 28 February 2019, Ateknea Solutions Catalonia v Commission (T‑69/16, not published, EU:T:2019:121, paragraph 124), and the provisions of the grant agreements at issue reproduced above in point 13 of this Opinion.

128      See above, point 118 of this Opinion.

129      This has been done, however, for example, in the orders of the General Court of 31 August 2011, IEM v Commission (T‑435/10, not published, EU:T:2011:410, paragraphs 37 to 46), and of 15 February 2016, InAccess Networks Integrated Systems v Commission (T‑82/15, not published, EU:T:2016:90, paragraphs 51 to 63).

130      See, with regard to this principle, judgments of 19 January 2006, Comunità montana della Valnerina v Commission (C‑240/03 P, EU:C:2006:44, paragraphs 69, 76, 78, 86 and 97); of 28 February 2013, Portugal v Commission (C‑246/11 P, not published, EU:C:2013:118, paragraph 102); and of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraphs 65 to 68); see also, in addition to paragraph 93 of the judgment under appeal, judgments of the General Court of 22 May 2007, Commission v IIC (T‑500/04, EU:T:2007:146, paragraph 94), and of 24 October 2014, Technische Universität Dresden v Commission (T‑29/11, EU:T:2014:912, paragraph 71).

131      See order of 30 January 2019, Verein Deutsche Sprache v Commission (C‑440/18 P, not published, EU:C:2019:77, paragraph 9 and the case-law cited).

132      Judgments of 19 January 2006, Comunità montana della Valnerina v Commission (C‑240/03 P, EU:C:2006:44, paragraph 78), and of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraph 68).

133      See, to that effect, judgment of 28 February 2019, Alfamicro v Commission (C‑14/18 P, EU:C:2019:159, paragraphs 65 to 70).

134      See paragraphs 97 to 115 of the judgment under appeal regarding the third plea at first instance.

135      See paragraphs 117 to 155 of the judgment under appeal regarding the fourth plea at first instance.

136      Paragraphs 107, 108 and 111 and paragraphs 156 and 157 of the judgment under appeal.

137      See above, footnote 5 of this Opinion.

138      See Commission Proposal for a regulation of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union of 14 September 2016, COM(2016) 605 final, Procedure 2016/0282 (COD), in particular p. 3, 4 and 31 (here recital 57), and report of the Parliament’s Committees on Budgets and on Budgetary Control of 8 June 2017, Procedure 2016/0282A (COD), available at      https://oeil.secure.europarl.europa.eu/oeil/popups/summary.do?id= 1492977&l=en&t=E.

139      See, in particular, recital 56 and Articles 33, 125 and 181 of Regulation 2018/1046.

140      See judgments of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraphs 47 to 49); of 29 March 2011, ThyssenKrupp Nirosta v Commission (C‑352/09 P, EU:C:2011:191, paragraph 136); and of 7 June 2018, Ori Martin v Court of Justice of the European Union (C‑463/17 P, EU:C:2018:411, paragraph 24).

141      See above, point 159 of this Opinion.

142      With regard to the sequence of events, see above, point 16 of this Opinion.

143      See above, point 171 of this Opinion.

144      See above, point 159 of this Opinion.