ADR Center SpA v European Commission.
Date: 2020-07-16
58


Consequently, it must be concluded that Article 79(2) of the Financial Regulation may serve as a legal basis for the Commission to adopt decisions constituting an enforceable order, within the meaning of Article 299 TFEU, even though the pecuniary obligation in question is of a contractual nature.
73


However, as the Advocate General noted in points 52 to 56 of her Opinion, the Commission may not adopt an enforceable decision in the context of contractual relations which do not contain an arbitration clause in favour of the EU judicature and which therefore fall within the jurisdiction of the courts of a Member State. The adoption of such a decision by the Commission in the absence of an arbitration clause would restrict the jurisdiction of those courts, since the EU judicature would become competent to rule on the legality of that decision. The Commission could thus systematically circumvent the division of powers between the EU judicature and the national courts enshrined in primary law, as recalled in paragraphs 62 to 64 of the present judgment. Therefore, the Commission’s power to adopt enforceable decisions in contractual relations should be limited to contracts which contain an arbitration clause conferring jurisdiction on the EU judicature.
75


In that regard, it should be recalled that the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union (see, inter alia, judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 147, and of 7 April 2011, Greece v Commission, C‑321/09 P, not published, EU:C:2011:218, paragraph 45). By contrast, a person may not plead breach of that principle unless he has been given those assurances (judgment of 31 January 2019, Islamic Republic of Iran Shipping Lines and Others v Council, C‑225/17 P, EU:C:2019:82, paragraph 57 and the case-law cited).
100


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. The same shall apply in contractual matters, since grants awarded by the Commission come from the EU budget. In accordance with a fundamental principle governing EU financial aid, the European Union can subsidise only expenditure actually incurred (judgment of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 65 and the case-law cited).
102


Consequently, if the costs declared by the beneficiary of the grant 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 (judgment of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 67).
107


Furthermore, where part of the costs have been considered ineligible because the beneficiary of the grant concerned had not complied with his contractual obligation to substantiate the use of the sums allocated to him, the fact that that beneficiary has in the meantime completed the project covered by that grant agreement does not affect the fulfilment of that obligation, since that grant does not represent the consideration for carrying out the project covered by that grant agreement (see, to that effect, 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).