Alfamicro - Sistemas de computadores, Sociedade Unipessoal, Lda. v European Commission.
Date: 2019-02-28
38


According to the case-law of the Court of Justice, to allow a party to put forward for the first time before the Court of Justice a plea in law which it did not raise before the General Court would in effect allow that party to bring before the Court of Justice a wider case than that heard by the General Court. In an appeal, the Court’s jurisdiction is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it. However, an argument which was not raised at first instance does not constitute a new plea that is inadmissible at the appeal stage if it is simply an amplification of an argument already developed in the context of a plea set out in the application before the General Court (judgment of 16 November 2017, Ludwig-Bölkow-Systemtechnik v Commission, C‑250/16 P, EU:C:2017:871, paragraph 29 and the case-law cited).
47


As a preliminary point, it should be noted, as the General Court did in paragraph 42 of the judgment under appeal, that, according to the settled case-law of the Court, 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 (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 16 and the case-law cited, and of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31 and the case-law cited).
48


On a number of occasions, the Court has found that, in the context of an action for annulment, the power of interpretation and application of the provisions of the FEU 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 (see, to that effect, judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 18, and order of 21 April 2016, Borde and Carbonium v Commission, C‑279/15 P, not published, EU:C:2016:297, paragraph 39).
49


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 (judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 19).
50


It follows from that case-law that, where there is a contract between the applicant and one of the European Union 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 (judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 20).
52


Consequently, that debit note falls within the scope of the grant agreement at issue, since the note’s purpose is the recovery of a debt which is grounded on the provisions of that agreement. Such a debit note and the formal demand for payment accompanying it set out only the maturity date and also the payment terms of the debt that they establish and cannot be equated to an enforcement order as such, 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 (see, by analogy, judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 23).
65


In that context, it should be noted that, under Article 317 TFEU, the Commission is obliged to observe the principle of sound financial management. It also ensures the protection of the financial interests of the European Union in the implementation of its budget. This is also a contractual matter, as the grants made by the Commission come from the EU budget. In accordance with a fundamental principle governing EU aid, the European Union can subsidise only expenditure actually incurred (judgment of 28 February 2013, Portugal v Commission, C‑246/11 P, not published, EU:C:2013:118, paragraph 102 and the case-law cited).
66


Consequently, the Commission cannot approve expenditure from the EU budget without legal basis; otherwise it will breach the principles established by the FEU Treaty. In the context of a grant, it is the grant agreement that governs the conditions for the allocation and use of that grant and, more particularly, the clauses relating to the determination of the amount of that grant on the basis of the costs declared by the party contracting with the Commission.
67


Consequently, if the costs declared by the beneficiary are not eligible under the relevant grant agreement because they have been judged to be unverifiable and/or unreliable, the Commission has no choice but to recover an amount of the grant equal to the unsubstantiated amounts, since, pursuant to the legal basis provided by that grant agreement, the Commission can pay out of the EU budget only duly substantiated sums. Accordingly, in the present case, requesting repayment of the part of the grant corresponding to the ineligible costs, as established in the Court of Auditor’s audit report, is an appropriate measure.
68


With regard to the arguments relating to the fact that that agreement involves reciprocal obligations, it is sufficient to note that the grant is not consideration for the realisation of the project forming the subject of the grant agreement. The sums paid by the Commission under that agreement are paid solely in order to allow the beneficiary to meet costs generated by such realisation. As part of those costs were found to be ineligible, as the beneficiary failed to comply with the contractual obligation to substantiate the use of the sums allocated to him, an amount equal to that part of the costs must be recovered by the Commission, and the fact that the beneficiary has in the meantime completed the project that is the subject of the grant agreement does not affect that obligation.
75


The principle of legal certainty — which is one of the general principles of European Union law — requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by European Union law (judgment of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 100 and the case-law cited).