CELEX: 62017TO0717
Language: en
Date: 2018-11-06 00:00:00
Title: Order of the General Court (Ninth Chamber) of 6 November 2018.#Nicolae Chioreanu v European Research Council Executive Agency (ERCEA).#Action for annulment — ERCEA — ‘Horizon 2020 Framework Programme for Research and Innovation’ — Decision rejecting the request for review of evaluation of the research proposal — Administrative appeal before the Commission — Dismissal of the administrative appeal — Incorrect designation of the defendant — Application for an order — Manifest inadmissibility.#Case T-717/17.

ORDER OF THE GENERAL COURT (Ninth Chamber)
   6 November 2018 (
         *1
      )
   (Action for annulment — ERCEA — ‘Horizon 2020 Framework Programme for Research and Innovation’ — Decision rejecting the request for review of evaluation of the research proposal — Administrative appeal before the Commission — Dismissal of the administrative appeal — Incorrect designation of the defendant — Application for an order — Manifest inadmissibility)
   In Case T‑717/17,
   
      Nicolae Chioreanu, residing in Oradea (Romania), represented by D.-C. Rusu, lawyer,
   applicant,
   v
   
      European Research Council Executive Agency (ERCEA), represented by F. Sgritta and M.E. Chacón Mohedano, acting as Agents,
   defendant,
   APPLICATION, first, under Article 263 TFEU seeking the annulment, on one hand, of the ERCEA’s decision of 23 March 2017 rejecting the request for review of the evaluation of research proposal No 741797-NIP, ERC‑2016-ADG, ‘New and Innovative Powertrain — NIP’, and, on the other hand, of Commission Decision C(2017) 5190 final of 27 July 2017 dismissing the administrative appeal brought by the applicant under Article 22(1) of Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1) and, secondly, seeking that the Court order the ERCEA to review the evaluation of the abovementioned research proposal,
   THE GENERAL COURT (Ninth Chamber),
   composed of S. Gervasoni, President, K. Kowalik-Bańczyk (Rapporteur) and C. Mac Eochaidh, Judges,
   Registrar: E. Coulon,
   makes the following
   
      Order
   
   
      Legal framework
   
   
            1
         
         
            Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1) gives the European Commission the power to set up executive agencies in order to delegate to them all or part of the implementation, on behalf of and under the responsibility of the Commission, of an EU programme or project.
         
      
            2
         
         
            According to Article 4 of Regulation No 58/2003, executive agencies are EU bodies with a public service role; they have legal personality and, in each of the Member States, they enjoy the most extensive legal capacity accorded to legal persons under national law.
         
      
            3
         
         
            In accordance with Article 22(1) and (5) of Regulation No 58/2003, any act of an executive agency which is prejudicial to a third party may be referred to the Commission for review of its legality. The Commission shall take a decision on the administrative proceedings in writing, giving grounds for its decision, after hearing the arguments adduced by the interested party and by the executive agency. An action for annulment of a decision to reject the administrative appeal may be brought before the Court of Justice.
         
      
            4
         
         
            In accordance with Article 6 of Council Decision of 3 December 2013 establishing the specific programme implementing Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020) and repealing Decisions 2006/971/EC, 2006/972/EC, 2006/973/EC, 2006/974/EC and 2006/975/EC (OJ 2013 L 347, p. 965), the Commission established, by Decision of 12 December 2013 (OJ 2013 C 373, p. 23), the European Research Council (‘the ERC’). The ERC is composed of an independent Scientific Council and a dedicated implementation structure.
         
      
            5
         
         
            The abovementioned dedicated implementation structure was established by Commission Implementing Decision of 17 December 2013 establishing the European Research Council Executive Agency and repealing Decision 2008/37/EC (OJ 2013 L 346, p. 58). The Commission delegated to the European Research Council Executive Agency (ERCEA), which is designated as the defendant in the present case, the implementation of the ERC’s specific objective under Horizon 2020, in accordance with Regulation No 58/2003. That delegation is governed by Commission Decision C(2013) 9428 final of 20 December 2013 on delegating powers to the ERCEA with a view to performance of tasks linked to the implementation of Union programmes in the field of frontier research comprising, in particular, implementation of appropriations entered in the general budget of the Union.
         
      
            6
         
         
            The rules for participation in calls for proposals organised, inter alia, by the ERCEA are laid down in Regulation (EU) No 1290/2013 of the European Parliament and of the Council of 11 December 2013 laying down the rules for participation and dissemination in ‘Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020)’ and repealing Regulation (EC) No 1906/2006 (OJ 2013 L 347, p. 81). Regulation No 1290/2013 establishes, in particular, in Article 16 thereof, an evaluation review procedure for applicants which consider that the evaluation of their proposal has not been carried out in accordance with the procedures set out in that regulation, the relevant work programme, work plan or the call for proposals. In accordance with Article 16(2), a request for review must be submitted by the applicant concerned within 30 days of the date on which the Commission or the relevant funding body informed the applicant of the evaluation results. According to Article 16(3), the Commission or the relevant funding body shall be responsible for the examination of the request for an evaluation review. That examination shall cover only the procedural aspects of the evaluation, and not the merits of the proposal. Article 16 does not set a specific time limit within which the Commission or the relevant funding body must decide on the request for an evaluation review and merely states, in Article 16(5), that they shall take their decision without undue delay. Finally, according to Article 16(7), the review procedure shall not preclude any other actions the participant may take in accordance with Union law.
         
      
      Background to the dispute
   
   
            7
         
         
            On 25 May 2016, the ERCEA published a call for proposals relating to ERC grants for experienced researchers under the Horizon 2020 Work Programme 2016 concerning the implementation of the ERC’s activities.
         
      
            8
         
         
            On 30 August 2016, the applicant, Mr Nicolae Chioreanu, acting on behalf of the University of Oradea (Romania), submitted project proposal No 741797 NIP — New and Innovative Powertrain — with a view to obtaining a grant (‘proposal No 741797-NIP’).
         
      
            9
         
         
            The evaluation of proposal No 741797-NIP was allocated to a panel of experts which decided that that proposal did not fulfil the ERC’s excellence criteria and, consequently, should not proceed to the second stage of selection for funding. By letter of 30 January 2017, the ERCEA informed the applicant of the result of the evaluation. That letter mentioned the legal remedies available, namely a request for an evaluation review, an administrative appeal under Article 22 of Regulation No 58/2003 and an action for annulment under Article 263 TFEU against the ERCEA. Moreover, that letter set out the time limits for exercising those remedies, indicated the email addresses which could be used for exercising the first two remedies and explained that the applicant could exercise only one formal remedy at a time. The evaluation report, including the individual comments of the experts, the final comments and the score awarded by the panel, was annexed to that letter.
         
      
            10
         
         
            On 14 February 2017, the applicant submitted a request for an evaluation review.
         
      
            11
         
         
            By letter of 23 March 2017, the Director of the ERCEA informed the applicant that his request for review had been rejected by the ERCEA’s review committee (‘the ERCEA decision of 23 March 2017’). According to the committee, no procedural error was made in the evaluation process. In that letter, the Director informed the applicant of the two legal remedies available, namely, on one hand, an administrative appeal under Article 22 of Regulation No 58/2003, which was required to be submitted to the email address indicated within one month of the applicant’s receipt of the decision, and, on the other hand, an action for annulment under Article 263 TFEU against the ERCEA’s decision of 23 March 2017, which was required to be brought within two months of the applicant’s receipt of the decision. That letter also referred to Regulation No 58/2003 and explained that the applicant could exercise only one remedy at a time and that, if he chose to bring an administrative appeal under Article 22 of Regulation No 58/2003, he would be required to wait for the final decision of the Commission and bring an action for annulment against that decision.
         
      
            12
         
         
            On 3 April 2017, the applicant brought an administrative appeal before the Commission under Article 22 of Regulation No 58/2003.
         
      
            13
         
         
            By Decision C(2017) 5190 final of 27 July 2017, taken on the basis of Article 22(1) of Regulation No 58/2003 (‘the Commission Decision of 27 July 2017’), the Commission dismissed the applicant’s administrative appeal as unfounded and upheld the ERCEA’s decision of 23 March 2017 rejecting the request for review of the evaluation of proposal No 741797-NIP. The applicant was notified of that decision by letter of 16 August 2017, signed by the Director-General of the Directorate-General (DG) for Research & Innovation. In that letter, there was a note informing the applicant that he could bring an action for annulment under Article 263 TFEU against the Commission within two months of receiving that letter.
         
      
      Procedure and forms of order sought
   
   
            14
         
         
            By application lodged at the Registry of the Court on 13 October 2017, the applicant brought the present action.
         
      
            15
         
         
            By separate document, lodged at the Registry of the Court on 23 January 2018, the ERCEA raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court. The applicant lodged his observations on that plea on 5 March 2018.
         
      
            16
         
         
            In the application, the applicant claims that the Court should:
            
                     –
                  
                  
                     annul ‘the decisions’ rejecting the request for review of the evaluation of proposal No 741797-NIP;
                  
               
                     –
                  
                  
                     order the ERCEA to review the evaluation of proposal No 741797-NIP.
                  
               
      
            17
         
         
            In the plea of inadmissibility, the ERCEA contends that the Court should:
            
                     –
                  
                  
                     dismiss the action as inadmissible;
                  
               
                     –
                  
                  
                     order the applicant to pay the costs.
                  
               
      
            18
         
         
            In his observations on the plea of inadmissibility, the applicant claims that the Court should declare the action admissible.
         
      
      Law
   
   
            19
         
         
            Under Article 130(1) and (7) of the Rules of Procedure, the Court may give a decision on inadmissibility without going to the substance of the case, if a defendant makes an application asking it to do so. Moreover, under Article 126 of those rules, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
         
      
            20
         
         
            In the present case, the Court considers that it has sufficient information available to it from the material in the file and has decided to rule on the action without opening the oral part of the procedure and without going to the substance of the case.
         
      
      
         Compliance with the rules relating to the content of the application
      
   
   
            21
         
         
            The ERCEA maintains that the application fails to indicate with the necessary precision the subject matter of the proceedings and the pleas in law on which the action is based. It points out, in particular, that in paragraphs 1 and 21 of the application, the applicant refers to the ‘negative decisions’ concerning the re-evaluation of proposal No 741797-NIP, without specifying particulars such as the date or the author of the contested act or acts, which allow the act or acts which are the subject of the action to be unequivocally identified.
         
      
            22
         
         
            In his observations on the plea of inadmissibility, the applicant maintains that the ERCEA’s argument is wrong, given that the application very clearly describes the subject matter of the proceedings, which is the ERCEA’s failure to comply with the evaluation procedure in the evaluation of proposal No 741797-NIP. With regard to the plural form used in paragraph 21 of the application, he argues that it was not necessary to specify all the identifying particulars of the decisions which he is seeking to have annulled, since those decisions appear in Annexes A.2 and A.3 to the application.
         
      
            23
         
         
            Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 of that statute, and under Article 76(d) and (e) of the Rules of Procedure, the application must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law, and the form of order sought by the applicant. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (orders of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20; of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49, and judgment of 15 June 1999, Ismeri Europa v Court of Auditors, T‑277/97, EU:T:1999:124, paragraph 29).
         
      
            24
         
         
            With regard, in particular, to the forms of order sought, it must be stressed that they define the subject matter of the proceedings. They must, therefore, state explicitly and unequivocally what the parties seek. In particular, in an action for annulment, the act whose annulment is sought must be clearly specified (judgment of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 67).
         
      
            25
         
         
            In the present case, it should be pointed out that, in paragraph 1 of the application, which appears under the heading ‘Subject matter of the proceedings’, the applicant asks the Court to annul ‘the rejection of the request for re-evaluation of [proposal No 741797-NIP], and to order the [ERCEA] to re-evaluate that proposal in strict compliance with the principles of transparency, fairness and impartiality as provided for in the ERC rules for the submission and evaluation of proposals’ and that, in paragraph 21 of the application, which appears under the heading ‘Form of order sought’, the applicant asks the Court ‘to annul the decisions rejecting the request for re-evaluation of proposal [No 741797-NIP] and to order the [ERCEA] to re-evaluate that proposal on the grounds of a failure to comply with the evaluation procedure’.
         
      
            26
         
         
            It follows from the foregoing that, by the present action, the applicant seeks, in essence, the annulment of an act of which the ERCEA is the author, with a view to having the ERCEA review the evaluation of proposal No 741797-NIP, by which the applicant applied for a grant for his project.
         
      
            27
         
         
            Nonetheless, in his observations on the plea of inadmissibility, the applicant states that he is seeking the annulment of the acts which were attached in Annexes A.2 and A.3 to the application. Those two annexes contain the ERCEA decision of 23 March 2017 and the Commission Decision of 27 July 2017 respectively.
         
      
            28
         
         
            The wording used in the application, in particular the use, in paragraph 21 therein, of the plural form to describe the acts covered by the action, and the fact that neither the authors of those acts, nor the dates of their adoption are specified in the application, may indeed give rise to confusion. Nevertheless, since the acts covered by the action were attached to the application, it is possible to identify them.
         
      
            29
         
         
            Furthermore, it should be pointed out that, in the plea of inadmissibility, the ERCEA presented arguments relating to the admissibility, on one hand, of an action against its decision of 23 March 2017 and, on the other hand, of an action against the Commission Decision of 27 July 2017. Thus, despite the application’s imprecision, the defendant was itself able to identify the two acts covered by the present action and to determine both their authors and the dates of their adoption.
         
      
            30
         
         
            It follows from the foregoing that the subject matter of the proceedings, as defined in the application, meets the requirements set out in paragraphs 23 and 24 above. It must, therefore, be found that, by the present action, the applicant seeks the annulment of two acts, namely the ERCEA decision of 23 March 2017 and the Commission Decision of 27 July 2017. In addition, he asks the Court to order the ERCEA to re-evaluate proposal No 741797-NIP.
         
      
      
         Application for annulment of the ERCEA decision of 23 March 2017
      
   
   
            31
         
         
            The ERCEA maintains that, in so far as it covers its decision of 23 March 2017, the present action is inadmissible, because it was brought after the time limit of two months laid down in the sixth paragraph of Article 263 TFEU.
         
      
            32
         
         
            The Court takes the view that, for another reason, the action is manifestly inadmissible in so far as it covers the ERCEA decision of 23 March 2017. It is sufficient to note that the applicant chose to bring, against that decision, an administrative appeal under Article 22 of Regulation No 58/2003 and that the Commission gave its decision on that administrative appeal by the Decision of 27 July 2017, which is also covered by the present action.
         
      
            33
         
         
            As the applicant thus opted for the administrative remedy which resulted in the adoption, on 27 July 2017, of a decision by the Commission, which is the authority which reviews the legality of the ERCEA’s acts, he can no longer challenge the ERCEA decision of 23 March 2017 by a judicial remedy under Article 263 TFEU, regardless of the issue of a possible failure to comply with the time limit for exercising such a remedy, raised by the ERCEA in its plea of inadmissibility.
         
      
            34
         
         
            It follows that the application for annulment of the ERCEA decision of 23 March 2017 is manifestly inadmissible.
         
      
      
         Application for annulment of the Commission Decision of 27 July 2017
      
   
   
            35
         
         
            The ERCEA maintains that, in so far as it covers the Commission Decision of 27 July 2017, the present action is inadmissible, because it is brought against an entity which is not the author of that decision.
         
      
            36
         
         
            Under Article 22(1) and (5) of Regulation No 58/2003, where an act of an executive agency which is prejudicial to a third party is referred to the Commission for review of its legality, an action for annulment of the Commission’s explicit or implicit decision to reject the administrative appeal may be brought before the Court of Justice.
         
      
            37
         
         
            According to the case-law, an application for annulment must, in principle, be made against the author of the contested measure (see orders of 22 July 2015, European Children’s Fashion Association and Instituto de Economía Pública v Commissionand EACEA, T‑724/14, not published, EU:T:2015:550, paragraph 21 and the case-law cited, and of 15 November 2017, Pilla v Commission and EACEA, T‑784/16, not published, EU:T:2017:806, paragraph 54). That is, in particular, the case where an act cannot be imputed to an EU institution, body, office or agency other than that from which that act emanates (see, to that effect, orders of 16 December 2008, Italy v Commission and EESC, T‑117/08, not published, EU:T:2008:582, paragraphs 16 to 19, and of 15 November 2017, Pilla v Commission and EACEA, T‑784/16, not published, EU:T:2017:806, paragraphs 55 to 60).
         
      
            38
         
         
            In addition, the mistaken designation in the application of a defendant other than the body which adopted the contested measure does not render the application inadmissible if the application contains information which makes it possible to identify unambiguously the party against whom it is made, such as the designation of the contested measure and the body responsible for it. In such a case, the defendant must be considered to be the body responsible for the contested measure, even if not referred to in the introduction to the application. However, that situation must be distinguished from the case in which the applicant persists in the designation of the defendant referred to in the introduction to the application, in full awareness of the fact that that defendant is not the author of the contested measure. In the latter case, the Court must treat as defendant the party designated in the application and, where appropriate, draw the necessary consequences of that designation in so far as concerns the admissibility of the action (see, to that effect, judgment of 22 November 1990,Mommer v Parliament, T‑162/89, EU:T:1990:72, paragraphs 19 and 20; see also order of 27 March 2017, Frank v Commission, T‑603/15, not published, EU:T:2017:228, paragraph 73 and the case-law cited).
         
      
            39
         
         
            In the present case, first of all, it must be found that the Commission alone is the author of the Decision of 27 July 2017. In adopting that decision, the Commission exercised the power granted to it by Regulation No 58/2003 to review the legality of the ERCEA’s decisions. The Commission Decision of 27 July 2017 cannot, therefore, under any circumstances be imputed to the ERCEA.
         
      
            40
         
         
            Next, it should be recalled that the possibility of bringing an action against the Commission decision and the legal basis of that action were mentioned in the ERCEA’s decision of 23 March 2017 (see paragraph 11 above). In addition, the letter of 16 August 2017 accompanying the Commission Decision of 27 July 2017, sent to the applicant by the Director-General of the DG for Research & Innovation, mentioned explicitly the Commission as the party against which an action for annulment relating to that decision should be brought under Article 263 TFEU (see paragraph 13 above).
         
      
            41
         
         
            Finally, it must be found that the applicant persisted in the designation of the ERCEA as the defendant in his observations on the plea of inadmissibility, even though the ERCEA had indicated in the plea of inadmissibility that, in so far as it covered the Commission Decision of 27 July 2017, the present action should have been brought against the Commission.
         
      
            42
         
         
            It follows from the foregoing that the application for annulment of the Commission Decision of 27 July 2017 is made against an entity which is not the author of that act. That application is, therefore, inadmissible.
         
      
      
         Application for the adoption of an order against the ERCEA
      
   
   
            43
         
         
            According to settled case-law, in the review of the legality of the acts of EU institutions, bodies, offices and agencies, it is not for the Court to issue directions to them or to substitute itself for them (judgment of 10 October 2012, Greece v Commission, T‑158/09, not published, EU:T:2012:530, paragraph 219; see, also, judgment of 22 April 2016, Italy and Eurallumina v Commission, T‑60/06 RENV II and T‑62/06 RENV II, EU:T:2016:233, paragraph 43 and the case-law cited).
         
      
            44
         
         
            The applicant’s application for the adoption of an order against the ERCEA is, therefore, manifestly inadmissible.
         
      
            45
         
         
            In light of the foregoing, the present action must be dismissed in its entirety as inadmissible.
         
      
      Costs
   
   
            46
         
         
            Under Article 134(1) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the ERCEA.
         
       
         
            On those grounds,
            THE GENERAL COURT (Ninth Chamber)
            hereby orders:
         
       
         
            
                     
                        1.
                     
                  
                  
                     
                        The action is dismissed.
                     
                  
               
       
         
            
                     
                        2.
                     
                  
                  
                     
                        Mr Nicolae Chioreanu is ordered to pay the costs.
                     
                  
               
       
            
               
                  Luxembourg, 6 November 2018.
                  
                     
                        E. Coulon
                        Registrar
                     
                     
                        S. Gervasoni
                        President
                     
                  
               
            
         (
         *1
      )	Language of the case: Romanian.