Ludwig-Bölkow-Systemtechnik GmbH v European Commission.
Date: 2017-11-16
16


It should be borne in mind that the duty to state reasons established by Article 296 TFEU is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement (judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited).
25


By the first part of the second ground of appeal, the appellant maintains that the Commission breached that principle in that it omitted to specify, in Article II.19 et seq. of the general conditions, the way in which the eligible costs had to be calculated by the contractor. It considers that the Commission merely formulated general principles and referred, in Article II.19(1)(b) of the general conditions, to the usual accounting principles of the contractor. It states that the principle of good faith is part of the general principles of EU law established by the Court. It refers in this respect to several judgments including those of 12 July 1957, Algera and Others v Common Assembly (7/56 and 3/57 to 7/57, EU:C:1957:7, pp. 55 and 56), as well as of 29 April 2004, IPK-München and Commission (C‑199/01 P and C‑200/01 P, EU:C:2004:249, paragraph 78).
28


As regards the first part of the second ground of appeal alleging that the Commission breached the EU law principle of good faith, it must be noted that, by the argument put forward in support, the appellant merely challenges the Commission’s decision. Accordingly, such a line of argument, which is not directed against the judgment under appeal, is inadmissible in an appeal.
29


As regards the second part of that ground of appeal, alleging the breach, by the General Court, of the principle of good faith, it must be noted that, 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 28 July 2016 in Tomana and Others v Council and Commission, C‑330/15 P, not published, EU:C:2016:601, paragraphs 33 and the case-law cited).
38


According to settled case-law, the General Court has exclusive jurisdiction to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess the evidence accepted. The establishment of those facts and the assessment of that evidence therefore do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice (judgment of 29 October 2015, Commission v ANKO, C‑78/14 P, EU:C:2015:732, paragraph 22 and the case-law cited).
39


Where an appellant alleges distortion of the evidence by the General Court, it must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to such distortion. In addition, according to the Court’s settled case-law, that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 99 as well as the case-law cited).
46


The appellant also claims in that regard that, in accordance with the case-law of the Court, and in particular the judgment of 26 February 2015, Planet v Commission (C‑564/13 P, EU:C:2015:124, paragraph 21), the interpretation and application of Articles 1162, 1134 and 1135 of the Belgian Civil Code, as falling under the national law applicable to the agreements by reason of an arbitration clause, is a question of law which may be presented to the Court in the context of an appeal.
49


It must nevertheless be noted that, by doing so, the appellant in fact disputes the interpretation of Articles II.19 to II.21 of the general conditions of the grant agreements which the General Court held to be clear. The interpretation of a term of a contract by the General Court constitutes a question of fact which cannot be subject, as such, to review by the Court of Justice in the context of an appeal (see to that effect, judgment of 29 October 2015, Commission v ANKO, C‑78/14 P, EU:C:2015:732, paragraph 23).
53


The appellant refers, in that regard, to the settled case-law in the field of unfair terms in respect of consumers, according to which the Court considered that the competent court cannot reduce unfair general conditions of a contract to the part of them that is still valid, but must, on the contrary, exclude their application to the other party to the contract (judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 58 et seq.). The appellant considers that that case-law can be applied to the present case in that it is, like consumers, the weaker party to the EU’s grant agreement, upon which the Commission’s contractual general conditions are imposed, with no ability to negotiate them.
55


As regards the first part of the fifth ground of appeal, alleging a failure to state reasons, it must be recalled, that, according to settled case-law, in the context of an appeal, first, the purpose of review by the Court of Justice is, inter alia, to consider whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant and, secondly, that a plea alleging that the General Court failed to rule on arguments relied on at first instance amounts essentially to pleading a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and Article 117 of the Rules of Procedure of the General Court (judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 37 and the case-law cited).
56


In that regard, it follows from the Court’s settled case-law that the General Court’s duty to state reasons does not require it to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, and that the General Court’s reasoning may therefore be implicit, on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 38, and the case-law cited).
65


It should be recalled that, as provided in the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, ‘no appeal shall lie regarding only the amount of the costs or the party ordered to pay them’. Moreover, according to settled case-law, where all the other grounds of appeal put forward in an appeal have been rejected, any ground of appeal challenging the decision of the General Court on costs must be rejected as inadmissible by virtue of that provision (see, in particular, order of 16 September 2005, Schmoldt and Others v Commission, C‑342/04 P, not published, EU:C:2005:562, paragraph 65 and the case-law cited).