Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro AE v European Commission.
Date: 2015-09-09
16. It is clear from settled case-law that an action for annulment for the purposes of Article 263 TFEU must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see, to that effect, judgments in IBM v Commission , 60/81, EU:C:1981:264, paragraph 9, and in Internationaler Hilfsfonds v Commission , C‑362/08 P, EU:C:2010:40, paragraph 51).
17. The objective of an action for annulment is to ensure observance of the law in the interpretation and application of the FEU Treaty and it would therefore be inconsistent with this objective to interpret the conditions under which the action is admissible so restrictively as to limit the availability of this procedure merely to the categories of measures referred to by Article 288 TFEU (see, to that effect, judgment in IBM v Commission , 60/81, EU:C:1981:264, paragraph 8).
18. The fact remains that that power of interpretation and application of the provisions of the Treaty by the EU judicature does not apply where the applicant’s legal position falls within the contractual relationships whose legal status is governed by the national law agreed to by the contracting parties.
19. Were the EU judicature to hold that it had jurisdiction to adjudicate on the annulment of acts falling within purely contractual relationships, not only would it risk rendering Article 272 TFEU — which grants the Courts of the European Union jurisdiction pursuant to an arbitration clause — meaningless, but would also risk, where the contract does not contain such a clause, extending its jurisdiction beyond the limits laid down by Article 274 TFEU, which specifically gives national courts or tribunals ordinary jurisdiction over disputes to which the European Union is a party (see, to that effect, judgment in Maag v Commission , 43/84, EU:C:1985:328, paragraph 26).
20. It follows from this that, where there is a contract between the applicant and one of the institutions, an action may be brought before the European Union judicative 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.
23. As regards specifically the debit note, it is clear from paragraphs 25 and 26 of the judgment under appeal that that note falls within the contract’s scope, since the note’s purpose is the recovery of a debt which is grounded on the provisions of the contract. The debit note must be understood as a formal demand for payment setting out the maturity date and also the payment terms and it cannot be equated to an enforcement order, even though it refers to enforcement pursuant to Article 299 TFEU as a possible option among others open to the Commission where a party fails to perform an obligation by the delivery date laid down.
26. It should, moreover, be pointed out that, irrespective of the fact that the General Court acknowledged, in paragraph 29 of the judgment under appeal, that the debit note was ambiguous, the right to effective judicial protection as guaranteed in the first paragraph of Article 47 of the Charter is no t in any way affected. It is apparent from the Court of Justice’s case-law that that article is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (judgment in Inuit Tapiriit Kanatami and Others v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 97, and order in von Storch v ECB , C‑64/14 P, EU:C:2015:300, paragraph 55).
27. Regarding Lito’s argument by which it is alleged that the General Court infringed the principle of the protection of legitimate expectations, it should be recalled that although, according to settled case-law, any economic operator to whom an institution has given justified hopes may rely on the principle of the protection of legitimate expectations that an existing situation will be maintained (see, to that effect, judgment in Di Lenardo and Dilexport , C‑37/02 and C‑38/02, EU:C:2004:443, paragraph 70 and the case-law cited) Lito has failed, however, to demonstrate how the Commission gave it such hopes in respect of the supposed admissibility of the action for annulment which it brought.
39. In so far as Lito puts forward, in the context of the present ground of appeal, the same argument as that already put forward at first instance, without demonstrating what the error allegedly committed by the General Court in paragraphs 55 and 56 of the judgment under appeal consisted of, it must be rejected as inadmissible in accordance with the Court of Justice’s settled case-law (see, inter alia, judgment in Interporc v Commission , C‑41/00 P, EU:C:2003:125, paragraph 16).
41. The General Court cannot be accused of any misinterpretation of the provisions of Belgian law, for having held, in paragraph 64 of the judgment under appeal, that the submission of the time sheets is a contractual obligation in its own right, the failure to comply with which constitutes a breach of contract which may lead to the repayment of advances made.
48. It must be recalled, at the outset, that the right to be heard in the context of judicial proceedings does not mean that the court has to incorporate in full in its decision all the submissions put forward by each party. That right implies, on the contrary, that the court, after listening to those submissions and assessing the evidence, decides whether or not to grant the relief sought in the application and give reasons for its decision (see, inter alia, judgments in Schröder and Others v Commission , C‑221/97 P, EU:C:1998:597, paragraph 24 and in Technische Glaswerke Ilmenau v Commission , C‑404/04 P, EU:C:2007:6, paragraph 125).
62. It follows from the foregoing that, by its arguments, Lito merely criticises the conclusion reached by the General Court in paragraphs 62 and 63 of the judgment under appeal and seeks, in fact, a mere re-examination of the application submitted to the General Court, which falls outside the jurisdiction of the Court of Justice (see, inter alia, judgment in Reynolds Tobacco and Others v Commission , C‑131/03 P, EU:C:2006:541, paragraph 50).
81. In an appeal, the jurisdiction of the Court of Justice is in principle confined to a review of the findings of law on the pleas argued at first instance (see, inter alia, judgment in Sison v Council , C‑266/05 P, EU:C:2007:75, paragraph 95 and the case-law cited).
87. Accordingly, Lito’s complaint relating to the assessment of the legal nature of the methods for the calculation of costs must be rejected given that it is not capable of leading to the judgment under appeal being set aside.
88. Consequently, the seventh ground of appeal must be rejected as ineffective.
The eighth ground of appeal
Arguments of the parties
91. It is important to note, at the outset, that, in its eighth ground of appeal, Lito merely reproduces the arguments which it already put forward before the General Court, without, however, specifying the contested elements of the judgment which it seeks to have set aside, or the legal arguments specifically advanced in support of the appeal. Accordingly, Lito merely seeks, in reality, reconsideration of the application submitted before the General Court, which falls outside the jurisdiction of the Court of Justice (see, inter alia, judgment in Eurocoton and Others  v Council , C‑76/01 P, EU:C:2003:511, paragraphs 46 and 47).
94. It should be noted that, according to settled case-law, the misuse of powers is the adoption by an institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (judgments in United Kingdom v Council , C‑84/94, EU:C:1996:431, paragraph 69; in Windpark Groothusen v Commission , C‑48/96 P, EU:C:1998:223, paragraph 52, and Swedish Match , C‑210/03, EU:C:2004:802, paragraph 75).
95. Accordingly, the misuse of powers is one of the elements against which the EU judicature examines the legality of the contested measure in an action for annulment on the basis of Article 263 TFEU (see, to that effect, judgment in Internationale Handelsgesellschaft , 11/70, EU:C:1970:114, paragraph 3).
96. By contrast, in the context of an action brought on the basis of Article 272 TFEU, the applicant can only complain that the institution party to the contract infringed the terms of the contract or of the law applicable to it (see, to that effect, judgment in Commission v Zoubek , 426/85, EU:C:1986:501, paragraph 11).