1 By its appeal, Inclusion Alliance for Europe GEIE (‘IAE’) seeks to have set aside the order of the General Court of the European Union of 21 April 2016, Inclusion Alliance for Europe v Commission (T‑539/13, not published, the order under appeal, EU:T:2016:235), by which that Court dismissed IAE’s action for annulment of Commission Decision C(2013) 4693 final of 17 July 2013 concerning the recovery of a sum of EUR 212 411.89 corresponding to part of the financial contribution paid to IAE under three grant agreements concluded in the context of the MARE, Senior and ECRN projects (‘the contested decision’).
2 Article 169 of the Rules of Procedure of the Court of Justice, entitled ‘Forms of order sought, pleas in law and arguments of the appeal’, provides, in paragraph 1 thereof: ‘An appeal shall seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision.’
3 Article 170 of the Rules of Procedure, entitled ‘Form of order sought in the event that the appeal is allowed’, provides, in paragraph 1 thereof: ‘An appeal shall seek, in the event that it is declared well founded, the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order. The subject matter of the proceedings before the General Court may not be changed in the appeal.’
4 The background to the dispute is set out in paragraphs 1 to 61 of the order under appeal. For the purposes of these proceedings, it may be summarised as follows.
5 IAE is a company established in Romania which operates in the health and social inclusion sector.
6 On 19 December 2007 and 2 September 2008, further to Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) (OJ 2006 L 412, p. 1, ‘the Seventh Framework Programme’), the Commission of the European Communities concluded with IAE a grant agreement entitled ‘Senior - Social Ethical and Privacy Needs in ICT for Older People: a dialogue roadmap’ (‘the Senior contract’) and a grant agreement entitled ‘Market Requirements, Barriers and Cost-Benefits Aspects of Assistive Technologies’ (‘the MARE contract’), respectively.
7 On 6 October 2008, in the context of one of the three specific programmes of the Competitiveness and Innovation Framework Programme (CIP), adopted by Decision No 1639/2006/EC of the European Parliament and of the Council of 24 October 2006 establishing a Competitiveness and Innovation Framework Programme (2007-2013) (OJ 2006 L 310, p. 15) (‘the CI Framework Programme’), the Commission concluded with IAE a third grant agreement entitled ‘European Civil Registry Network’ (‘the ECRN contract’).
8 IAE and the other parties concerned participated in the research projects in question in the context of consortia and each grant agreement included, inter alia, an Annex II containing the general contractual conditions (‘the General Conditions of the Seventh Framework Programme’ with regard to the Senior and MARE contracts and ‘the General Conditions of the CI Framework Programme’ with regard to the ECRN contract).
9 The General Conditions of the Seventh Framework Programme and the General Conditions of the CI Framework Programme provide for the funding by the Commission, up to a specified amount, of the eligible costs incurred by the participants in those framework programmes for the implementation of the projects in question.
10 According to Article II.22 of the General Conditions of the Seventh Framework Programme and Article II.28 of the General Conditions of the CI Framework Programme, the Commission had the power to carry out, through external auditors or its own services, financial audits concerning ‘financial, systemic and other aspects (such as accounting and management principles) relating to the proper execution of the grant agreement [concerned]’.
11 The audit procedure was governed by the General Conditions of the Seventh Framework Programme and by the General Conditions of the CI Framework Programme. In particular, at the end of that audit procedure, a provisional report was to be drawn up and sent to the party concerned to enable the latter to make its comments before a final report was adopted.
12 Article II.21 of the General Conditions of the Seventh Framework Programme and Article II.30 of the General Conditions of the CI Framework Programme concerned the recovery by the Commission of the sums unduly paid to each beneficiary.
13 Furthermore, it was stipulated in the Senior, MARE and ECRN contracts that those contracts were governed by the clauses of those contracts, the EU measures relating to the Seventh Framework Programme or the CI Framework Programme, Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended by Council Regulation (EC) No 1525/2007 of 17 December 2007 (OJ 2007 L 343, p. 9) (‘the Financial Regulation’) and Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1), other rules of EU law and, in the alternative, Belgian law.
14 Article 9(2) of the Senior contract, Article 9 of the MARE contract and Article 10 of the ECRN contract provided for the power of the Commission to adopt enforceable decisions to enforce ‘pecuniary obligations’ within the meaning of Article 256 EC (now Article 299 TFEU).
15 That power was also provided for in Article II.21 of the General Conditions of the Seventh Framework Programme and Article II.30 of the General Conditions of the CI Framework Programme.
16 After having paid various financial contributions in the context of the Senior and MARE contracts, the Commission terminated the MARE contract early and notified IAE of its intention to arrange for a financial audit to be carried out in order to verify that those contracts had been performed properly.
17 That audit identified problems in the financial management of the projects in question, the conditions stipulated in those contracts and in the General Conditions of the Seventh Framework Programme having not been observed.
18 By letter of 21 December 2010, taking the view that the comments made by IAE on the provisional audit report did not contain any new information, the Commission notified the party concerned of the closure of the audit by sending it the final audit report, according to which EUR 49677 was to be recovered in respect of the Senior contract and EUR 72890 in respect of the MARE contract. In addition, the Commission requested that IAE assess the extent to which the systematic problems identified in that report could have affected the financial accounts relating to the periods that had not yet been audited.
19 By email of 10 March 2011, by which it notified the Commission that it had lodged, in January of that year, a complaint with the European Ombudsman, IAE requested that the Commission grant it an extension of the time limit within which to reply to that request. On the same day, the Commission refused, pursuant to Article 2(6) of Decision 94/262/ECSC, EC, Euratom: Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15), to grant the request for an extension of the time limit submitted by IAE.
20 On 17 October 2011, after various exchanges between IAE and the Commission, the latter issued, in the context of the MARE project, debit note No 3241111004 for an amount of EUR 72 889.57, while reserving the right, in the absence of any payment, to adopt an enforceable measure within the meaning of Article 299 TFEU.
21 On 2 April 2012, the Commission notified IAE of its intention to recover the sums due in the context of the Senior project. Taking the view that the comments made by IAE on the final audit report in that regard did not contain any new information, the Commission issued debit note No 3241203475 for an amount of EUR 49677.
22 By decision of 2 May 2012, adopted at the end of the complaints procedure initiated by IAE, the Ombudsman concluded that that complaint revealed no instances of ‘maladministration’ on the part of the Commission.
23 On 4 April and 20 July 2012, as IAE had not repaid any of the sums due in the context of the MARE and Senior projects, the Commission sent IAE letters of formal notice requesting it, for each of those projects, to pay the principal amount, together with interest on late payment from the date mentioned in debit note No 3241111004 and in debit note No 3241203475, respectively. The Commission specified that, if the sums at issue were not repaid within 15 days of the date of receipt of those letters of formal notice, an enforcement procedure for the recovery of those sums would be brought.
24 On 26 June 2012, in the light of the results of the financial audit with regard to the MARE and Senior projects, the Commission took the necessary steps to obtain payment by IAE of liquidated damages calculated in accordance with Article II.24 of the General Conditions of the Seventh Framework Programme. On 10 September 2012, in the absence of any comments by IAE in that regard, the Commission issued two other debit notes that also mentioned the possibility for it, in the absence of any payment, to adopt an enforceable decision within the meaning of Article 299 TFEU.
25 In the context of the ECRN contract, having paid a financial contribution of EUR 178230 to IAE, the Commission also arranged for a financial audit to be carried out which revealed that the financial management of the project at issue had not been carried out in accordance with the conditions laid down in that contract and in the General Conditions of the CI Framework Programme.
26 On 19 December 2011, having received IAE’s comments on the provisional audit report, the Commission closed the audit procedure by drawing up a final report, according to which a sum of EUR 169365 was to be recovered from IAE.
27 On 5 March 2012, despite the comments made by IAE in that regard, the Commission confirmed the conclusions of the final audit report by notifying the party concerned of the opening of a procedure for the recovery of the sum unduly paid in accordance with the provisions of Articles II.28.5 and II.30.1 of the General Conditions of the CI Framework Programme.
28 On 7 May 2012, the Commission issued debit note No 3241204669, mentioning the date from which interest on late payment would start to accrue and, once again, the possibility for it, in the absence of any payment, to adopt an enforceable decision within the meaning of Article 299 TFEU.
29 On 26 June 2012, as IAE had failed to make payment within the time limit imposed, the Commission sent a reminder letter to the party concerned.
30 On 30 July of that year, following an extension of the bank guarantee initially set up, the partial balance still owed by IAE was EUR 62427 and, together with interest on late payment accrued of EUR 2798, EUR 65225 in total.
31 On 17 July 2013, the Commission adopted, under Article 299 TFEU, the contested decision.
32 According to Article 1 of that decision, IAE owed the Commission EUR 80 352.07 in respect of the MARE contract, EUR 53 138.40 in respect of the Senior contract and EUR 65225 in respect of the ECRN contract. Adding to those amounts interest on late payment of EUR 13 696.42 as at 15 July 2013, a total amount of EUR 212 411.89 was owed by IAE, increased by EUR 25.42 for each additional day of delay.
33 By application lodged at the Court Registry on 2 October 2013, IAE brought an action seeking, first, annulment of the contested decision and, second, payment of liquidated damages by the Commission on account of the material and non-material damage allegedly suffered by IAE as a result of the application of the contested decision.
34 As regards the application for annulment, as a preliminary matter, the General Court dismissed the action in so far as it was brought against the firm that had been engaged to carry out the audits on the ground that the EU judicature manifestly lacked jurisdiction over it.
35 In addition, the General Court dismissed as manifestly inadmissible, first, the application for suspension of operation of the contested decision on the ground that that application had not been made ‘by separate document’ in accordance with its Rules of Procedure and, second, the application for annulment of ‘all other investigation procedures carried out by the Commission or, at its request, by other organisations’ in the absence of further clarification with regard to the subject matter of that application.
36 In support of its action before the General Court, IAE raised, in essence, eight pleas in law.
37 The General Court pointed out, in paragraph 86 of the order under appeal, that where, in the context of contractual relationships, the Commission adopts an enforceable decision within the meaning of Article 299 TFEU formally establishing a claim, the merits of that decision may be challenged before the EU judicature only on the basis of Article 263 TFEU. In paragraph 90 of that order, the General Court stated that the legality of such a decision was to be assessed in the light of the TFEU or of any other rule of law relating to its application, that is to say, of EU law. On the other hand, according to the General Court, where the EU judicature adjudicates on an action brought on the basis of Article 272 TFEU, the applicant can allege only that the institution party to the contract failed to perform contractual obligations or infringed the law applicable to the contract concerned.
38 The General Court inferred from that, in paragraph 91 of the order under appeal, that the pleas raised in the application at first instance seeking to have the General Court rule on the legality of the contested decision in the light of the clauses of the contracts at issue and the national law applicable to those contracts had to be rejected as inadmissible.
39 In those circumstances, the General Court examined each of the pleas raised by IAE in the context of the action at first instance in order to determine whether they could be considered admissible in the context of an action brought on the basis of Article 263 TFEU.
40 As regards the first plea, alleging misapplication of the ‘financial guidelines’, the General Court pointed out, in paragraph 96 of the order under appeal, that IAE submitted, in essence, that the clauses of the contracts at issue provided for the application of the 2007 financial guidelines and therefore did not allow the auditor to apply more recent versions of those guidelines. Taking the view that that argument related to the interpretation of clauses of the contracts at issue, the General Court, in paragraph 97 of that order, rejected that plea as inadmissible.
41 The General Court added, in paragraph 98 of that order, that that conclusion could not be called into question by the reformulation of that plea, which IAE attempted by submitting that the alleged retroactive application of the 2010 financial guidelines constituted an infringement of the principle of the lawfulness of administrative action, the principle of proportionality, the principle of audi alteram partem, the principle of transparency, the principle of the right to a fair hearing and the duty to state reasons. In paragraph 99 of that order, the General Court held that such an argument put forward for the first time in the reply had to be rejected as inadmissible pursuant to Article 44(1) of its Rules of Procedure, read in conjunction with the first subparagraph of Article 48(2) thereof.
42 As regards the second plea, alleging breach of the principle of sound administration and of the principle of respect for the rights of the defence, the General Court, after declaring that plea admissible, rejected it, in paragraph 112 of the order under appeal, as manifestly unfounded.
43 As regards the third plea, alleging the existence of errors contained in the final audit report and failure to take into account the comments made by IAE on the provisional audit report, the General Court rejected it, in paragraph 115 of the order under appeal, as manifestly inadmissible on the ground that the arguments expounded therein were difficult to understand and were, in any event, entirely unsubstantiated. In paragraphs 116 and 117 of that order, the General Court added that, in any event, the first claim related to the interpretation of the contracts at issue and that the second claim had already been rejected in the context of the examination of the second plea.
44 As regards the fourth and fifth pleas, alleging infringement of the principles of cooperation and mutual trust and concerning the uncertainty regarding the rules applicable to small and medium-sized enterprises (SMEs) for the purposes of assessing the eligibility of the project costs, the General Court also rejected them, in paragraphs 120 and 123 of the order under appeal, as manifestly inadmissible, as they concerned only the interpretation of the clauses of the contracts at issue and not that of a rule of EU law.
45 The sixth plea, alleging failure to apply the Standards of the International Federation of Accountants (IFAC) and the European legislation on the audit of SMEs, was rejected by the General Court, in paragraph 126 of the order under appeal, as manifestly inadmissible, as that plea did not concern any rules of EU law in the light of which the legality of the contested decision could be assessed.
46 The seventh plea, alleging errors made by the auditor concerning the arrangements for carrying out the audits and the ineligibility of certain costs declared by IAE, was also rejected by the General Court, in paragraph 128 of the order under appeal, as manifestly inadmissible, as the arguments relied on concerned the interpretation of the clauses of the contracts at issue.
47 By the eighth plea, IAE relied on the liability of the European Union for unjust enrichment. The General Court pointed out, in paragraph 130 of the order under appeal, that such a plea could not be raised in an action brought on the basis of Article 263 TFEU. Furthermore, the General Court added, in paragraph 132 of that order, that, in order for such an action to be allowed, the enrichment must be devoid of any valid legal basis, which is, however, not the case where it is justified, as in the case at hand, by contractual obligations.
48 As regards the claim for liquidated damages, by which IAE requested that the General Court order the Commission to pay compensation for the material and non-material damage allegedly suffered by IAE as a result of the application of the contested decision, the General Court rejected it, in paragraph 138 of the order under appeal, as manifestly inadmissible, as it did not satisfy the requirements laid down in the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1) of its Rules of Procedure.
49 Consequently, the General Court dismissed the action at first instance as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law.
50 By its appeal, IAE claims, in essence, that the Court should: - set aside the order under appeal; - order the Commission to pay the costs.
51 The Commission contends that the Court should: - dismiss the appeal; - order IAE to pay the costs, including the costs relating to the interlocutory proceedings.
52 In its response, the Commission contends that the appeal is inadmissible.
53 The Commission contends, in the first place, that, as the grounds relied on in support of the appeal constitute a mere reiteration of the arguments relied on in the application at first instance and do not contain any specific legal arguments concerning the reasoning of the General Court in the order under appeal, the appeal does not satisfy the requirements laid down in Article 168(1)(d) of the Rules of Procedure, according to which the appeal shall contain ‘the pleas in law and legal arguments relied on, and a summary of those pleas’.
54 In the second place, the appeal does not comply with the provisions of Article 170 of the Rules of Procedure, which state that ‘an appeal shall seek, in the event that it is declared well founded, the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order.’ In that regard, the Commission observes that the appeal seeks only to have set aside the order under appeal in its entirety, but does not seek the same form of order as that sought at first instance, that is, inter alia, the annulment of the contested decision. Accordingly, IAE does not have an interest in bringing proceedings in the present case. Even if the appeal is allowed, the Court’s decision would have no practical effect in the light of the contested decision’s continued existence in the legal order.
55 As regards, in the first place, the argument that the appeal is inadmissible on the ground that that appeal does not meet the requirements laid down in Article 168(1)(d) of the Rules of Procedure, it must be borne in mind that it follows from that provision and the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal must state precisely the contested elements of the decision that the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible (see, to that effect, judgment of 4 October 2018, Staelen v Médiateur, C‑45/18 P, not published, EU:C:2018:814, paragraph 14 and the case-law cited).
56 In the present case, the appeal contains, as regards each ground of appeal, a reference to the contested points of the order under appeal and a summary argument identifying the error of law allegedly vitiating that order, thus enabling the Court to exercise its powers of judicial review. Furthermore, it follows implicitly from the response that the Commission had no difficulty in understanding the reasoning adopted by the appellant in the various grounds.
57 As regards, in the second place, the argument that the appeal is inadmissible on the ground that, in its appeal, IAE does not seek the same form of order as that sought at first instance, it must be borne in mind that, pursuant to Article 169 of the Rules of Procedure, an appeal seeks to have set aside the decision of the General Court as set out in the operative part of that decision. That provision thus encapsulates the basic principle applying to appeals, namely that an appeal must be directed against the operative part of the General Court’s decision and may not merely seek the amendment of some of the grounds of that decision (see, to that effect, judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 43 to 45, and of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraph 51).
58 Article 170 of the Rules of Procedure, which is the corollary thereof, concerns, on the other hand, the heads of claim in the appeal relating to the consequences of a possible setting aside of that decision (see, to that effect, judgment of 11 June 2015, EMA v Commission, C‑100/14 P, not published, EU:C:2015:382, paragraph 41).
59 In the present case, it must be noted that, first, IAE formally claims that the Court should set aside the order under appeal. Second, even if the other heads of claim in the appeal do not expressly seek the same form of order as that sought at first instance, that is, to have the contested decision annulled, they cannot be regarded as seeking anything other than, in essence, the same result.
60 In order to avoid excessive formalism, it must therefore be found, contrary to the case-law cited in paragraphs 57 and 58 of this judgment, that IAE complied with the requirements laid down in Articles 169 and 170 of the Rules of Procedure.
61 Moreover, as regards the argument that IAE has no interest in bringing proceedings, it must be borne in mind that, for an applicant to have an interest in bringing proceedings, the appeal must be likely, if successful, to procure an advantage to the party bringing it (judgments of 19 October 1995, Rendo and Others v Commission, C‑19/93 P, EU:C:1995:339, paragraph 13, and of 3 April 2003, Parliament v Samper, C‑277/01 P, EU:C:2003:196, paragraph 28).
62 In that regard, it must be pointed out that, as IAE was unsuccessful at first instance, it undoubtedly has an interest in the Court of Justice allowing its appeal and referring the case back to the General Court for that Court to examine the merits of the pleas that it rejected as manifestly inadmissible.
63 In the light of the above, the plea of inadmissibility must be rejected.
64 IAE relies on four grounds of appeal. The first ground of appeal alleges misinterpretation of the concept of an action based on Article 263 TFEU. By the second ground of appeal, IAE submits that the General Court misinterpreted the argument relied on in the reply and, consequently, infringed general principles of EU law. The third ground of appeal alleges misinterpretation of the third and sixth pleas raised at first instance and failure to state reasons in the order under appeal. The fourth ground of appeal alleges misinterpretation of the claim relating to the unjust enrichment of the European Union and of the claim for liquidated damages.
65 By the first ground of appeal, IAE argues that the General Court incorrectly classified the action at first instance by holding, in paragraph 90 of the order under appeal, that that action was wrongly based on Article 263 TFEU and that it should have been brought on the basis of Article 272 TFEU, as the pleas raised alleged failure to perform contractual obligations or infringement of the law applicable to the contracts at issue.
66 According to IAE, the pleas raised in the application instituting proceedings do not allege failure to perform contractual obligations, but infringement of general principles of EU law, enshrined both in the TFEU and in the Financial Regulation, to which express reference is also made in Article II.25 of the General Conditions of the Seventh Framework Programme. IAE states that the clauses of the contracts at issue are only one of the components of the legal reference framework and that they require ‘ongoing interpretation’ and should be supplemented by express references to the general principles of EU law.
67 Furthermore, allowing the General Court to call into question the legal basis of the action at first instance would lead to the infringement of the rights of the defence in that the addressees of decisions that significantly affect the interests of those addressees would not be given the opportunity effectively to make their points of view known.
68 IAE states that general principles of EU law, such as, inter alia, the principle of respect for the rights of the defence, the principle of audi alteram partem, the right to a fair hearing, the principle of the lawfulness of administrative action and the principle of proportionality were relied on both in the application initiating proceedings and in the reply.
69 The Commission contends that the first ground of appeal should be rejected as manifestly unfounded. According to that institution, the General Court rightly took the view, in paragraphs 82 et seq. of the order under appeal, that the action at first instance was based on Article 263 TFEU and that, consequently, in the light of the nature and limits of the role of the courts in the context of the review of legality, the pleas raised by IAE in support of claims seeking a decision on the legality of the contested decision in the light of the contractual provisions were inadmissible.
70 As regards the argument relied on by IAE with regard to the classification of the pleas raised in the context of an action for annulment, it must be pointed out that, in paragraph 90 of the order under appeal, without carrying out any assessment of whether or not the basis of the action brought before it was appropriate, the Court recalled the case-law that establishes that the EU judicature, when adjudicating on an action for annulment on the basis of Article 263 TFEU, must assess the legality of the contested measure in the light of the TFEU or of any other rule of law relating to its application, that is to say, of EU law, and that, on the other hand, in the context of an action brought on the basis of Article 272 TFEU, an applicant can allege only that the institution party to the contract failed to perform contractual obligations or infringed the law applicable to the contract concerned.
71 In that regard, it must be borne in mind that an action for annulment for the purposes of Article 263 TFEU must be generally available in the case of all measures adopted by the EU institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in the legal position of that applicant (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 16; of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 47; of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 69; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 62).
72 However, the EU judicature does not have jurisdiction over an action for annulment where the applicant’s legal position falls within contractual relationships whose legal status is governed by the national rules agreed to by the contracting parties (see, to that effect, judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 18; of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 48; of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 78; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 63).
73 Were the EU judicature to hold that it had jurisdiction to adjudicate on the annulment of measures falling within purely contractual relationships in such a case, 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 (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro vCommission, C‑506/13 P, EU:C:2015:562, paragraph 19; of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 49; of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 79; and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 64).
74 It follows from that case-law that, where there is a contract between the applicant and one of the EU institutions, an action may be brought before the EU 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 (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 20, of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 50, and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 65).
75 However, the Commission cannot adopt an enforceable decision in the context of contractual relationships that do not contain an arbitration clause in favour of the EU judicature and 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 have the effect of limiting the jurisdiction of those courts, as the EU judicature would acquire jurisdiction to rule on the legality of that decision. The Commission could thus systematically circumvent the allocation of jurisdiction between the EU judicature and the national courts enshrined in the primary law referred to in paragraphs 72 to 74 of this judgment. Accordingly, the power of the Commission to adopt enforceable decisions in the context of contractual relationships must be limited to contracts that contain an arbitration clause that confers jurisdiction on the EU judicature (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 73).
76 According to the case-law of the General Court, cited in paragraph 90 of the order under appeal, where the EU judicature adjudicates on an action for annulment brought on the basis of Article 263 TFEU, it assesses the legality of the contested measure in the light of EU law alone, as the applicant can rely on failure to perform contractual obligations or infringement of the law applicable to the contract concerned only in the context of an action brought on the basis of Article 272 TFEU.
77 It follows from that case-law of the General Court that the EU judicature, when adjudicating on an action for annulment brought against an enforceable decision which constitutes a measure adopted by an institution party to the contract under a power of its own that is distinct from the contractual relationship between the parties, will declare as inadmissible any plea alleging failure to perform contractual obligations or infringement of the provisions of national law applicable to the contract concerned unless it is possible, under certain conditions relating not only to the intention of that judicature, but also to the fact that the applicant does not expressly object to it and to the existence of pleas alleging infringement of the rules governing the contractual relationship, to reclassify the pleas raised (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraphs 81 and 84).
78 In the case at hand, the General Court, after having pointed out, in paragraph 92 of the order under appeal, that each of the pleas raised had to be examined, rejected as inadmissible the first plea and the third to seventh pleas of the action at first instance on the ground, inter alia, that the arguments relied on therein related to the interpretation of the clauses of the contracts at issue.
79 The application of the case-law of the General Court, which makes a distinction as to whether the pleas raised in the context of an action must be regarded by the EU judicature adjudicating on that action as relating to one of the infringements or cases referred to in the second paragraph of Article 263 TFEU or, on the contrary, as alleging failure to perform the clauses of the contract concerned or infringement of the provisions of national law applicable to that contract, would have required that the applicant bring its action on the basis of Article 272 TFEU as well. As such, that case-law would not ensure that all the questions of fact and law that are relevant to the dispute are examined in order to ensure effective judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
80 For a court to be able to determine a dispute concerning rights and obligations arising under EU law in accordance with Article 47 of the Charter, that court must have jurisdiction to consider all the questions of fact and law that are relevant to the dispute before it (see, to that effect, judgments of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 49, and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 84). Thus, where the EU judicature adjudicates, under Article 263 TFEU, on an action for annulment in the context of a dispute concerning a decision taken on the basis of the performance of a contract, such as in the context of the adoption of an enforceable decision formally establishing a contractual claim, it is for that judicature to hear and determine both the pleas calling into question that decision on the ground that the institution exercised its prerogatives of a public authority and those calling into question the contractual obligations that led to the adoption of that decision (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 88).
81 Furthermore, if the parties decide, in their contract, to confer on the EU judicature, by means of an arbitration clause, jurisdiction over disputes relating to that contract, that judicature will have jurisdiction, independently of the applicable law stipulated in that contract, to examine any infringement of the Charter or of the general principles of EU law.
82 In that regard, it should be pointed out that, where the Commission performs a contract, it remains subject to its obligations under the Charter and the general principles of EU law. Thus, the fact that the law applicable to the contract concerned does not guarantee the same rights as those guaranteed by the Charter and the general principles of EU law does not exempt the Commission from ensuring that the rights guaranteed by the latter are respected in relation to its contracting parties (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 86).
83 It follows that the General Court erred in law in ruling that, in the context of an action brought on the basis of Article 263 TFEU, the EU judicature must assess the legality of the contested measure solely in the light of EU law and that a failure to perform the clauses of the contract concerned or an infringement of the law applicable to that contract may be relied on only in the context of an action brought on the basis of Article 272 TFEU.
84 In the light of the foregoing, the first ground of appeal must be allowed.
85 By the second ground of appeal, IAE submits that the General Court erred in taking the view, in paragraph 98 of the order under appeal, that the arguments set out in the reply consisted in the raising of new pleas that sought to reformulate the first plea raised in the application at first instance. In doing so, the General Court misinterpreted the arguments contained in the reply. Those arguments do not constitute a new claim, but merely clarifications of the pleas raised in the application initiating proceedings.
86 The Commission contends that the second ground of appeal should be rejected as manifestly unfounded.
87 It should be pointed out that, as the expression ‘moreover’ shows, the reasoning contained in paragraph 98 of the order under appeal is set out for the sake of completeness in relation to that contained in paragraph 97 of that order, in which the General Court held that the first plea had to be regarded as inadmissible, as the arguments that that plea contains relate to the interpretation of contractual clauses and therefore cannot, as such, be relied on in the context of an action for annulment brought on the basis of Article 263 TFEU.
88 The pleas directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to that decision being set aside and are therefore nugatory (see, inter alia, judgment of 11 December 2019, Mytilinaios Anonymos Etairia - Omilos Epicheiriseon (C‑332/18 P, EU:C:2019:1065, paragraph 137 and the case-law cited).
89 Consequently, the second ground of appeal must be rejected as ineffective.
90 By the third ground of appeal, IAE alleges that the General Court, first, failed, in paragraphs 113 et seq. and in paragraphs 124 et seq. of the order under appeal, duly to take into account either the applicable audit rules or, consequently, the general principles of EU law and, second, failed to state to the requisite legal standard why the third and sixth pleas raised in support of the action at first instance had to be rejected as unfounded.
91 According to IAE, it follows from Article 317 TFEU that the Commission must also act in accordance with the principles of sound financial management applicable to audits. Furthermore, in accordance with recital 33 and Article 124 of the Financial Regulation, the Commission is obliged to observe certain generally accepted accounting principles, in particular the principle of consistent accounting methods. Those principles do not apply to the EU institutions only in the context of the implementation of the EU budget, but are enforceable against them in the context of any action taken, including in a contractual context.
92 The General Court erred in law in taking the view that the application of audit rules pertains to the interpretation of the contractual clauses and cannot be the subject of an examination by the EU judicature in the context of an action for annulment, whereas, on the contrary, it should have taken into account those rules in order to find that there was an infringement of the general principles of EU law.
93 Moreover, the General Court erred in law in the context of its assessment of the evidence adduced by IAE in that it failed to take into account the facts and documentation submitted by IAE.
94 According to the Commission, the third ground of appeal should be rejected as unfounded.
95 As regards, in the first place, an alleged failure to state reasons in the order under appeal, it must be borne in mind that, according to settled case-law, the obligation to state reasons requires the General Court to clearly and unequivocally disclose the reasoning followed by it in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, inter alia, judgments of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 136, and of 26 May 2016, Rose Vision v Commission, C‑224/15 P, EU:C:2016:358, paragraph 24).
96 In the present case, it is apparent from paragraphs 114 to 118 and 124 to 126 of the order under appeal that it cannot be validly argued that the Court failed to state the reasons why the third and sixth pleas raised by IAE in support of its action for annulment had to be rejected.
97 In the context of its examination of the third plea, the General Court pointed out, in paragraph 115 of the order under appeal, that the allegations made by IAE concerning the final audit report were difficult to understand and, in any event, entirely unsubstantiated, holding that they should therefore be rejected as manifestly inadmissible. As for the breach of the principle of respect for the rights of the defence, the General Court referred to the examination carried out in paragraphs 107 to 122 of the order under appeal, an examination which led it to conclude that the arguments relied on by IAE in that regard had to be rejected as unfounded.
98 As regards the sixth plea, the General Court pointed out, in paragraphs 124 and 125 of the order under appeal, that the provisions to which IAE referred constituted rules which are either issued by third bodies or have no binding effects.
99 As regards, in the second place, the argument alleging that the General Court erred in law in the context of its assessment of the facts and evidence, it is sufficient to note that, according to settled case-law, an appeal lies on points of law only and the General Court has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence, save where the facts and evidence are distorted (judgments of 18 July 2006, Rossi v OHIM, C‑214/05 P, EU:C:2006:494, paragraph 26, and of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 38).
100 In the present case, as IAE does not submit that the General Court distorted the facts or evidence, but merely states that it erred in its assessment of the facts and evidence submitted before it, that argument must be rejected as inadmissible.
101 As regards, in the third place, the application of Article 317 TFEU and of the Financial Regulation, it must be borne in mind that the jurisdiction of the Court of Justice is limited to assessing the findings in law on the pleas argued at first instance. To allow a party to raise for the first time before the Court of Justice a plea which it has not raised before the General Court would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, to that effect, judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 59).
102 In the present case, it must be pointed out that IAE did not, admittedly, rely on such an argument before the General Court, but merely alleged infringement of certain applicable audit provisions.
103 However, as it is apparent from paragraph 83 of this judgment that the Commission is obliged to observe the provisions of the TFEU and those of the Financial Regulation, whether acting as a contracting party in contractual relationships with an individual or adopting, in its capacity as administrative authority, decisions that are enforceable, the fact that IAE now refers to the application of Article 317 TFEU and of the provisions of the Financial Regulation should not lead to the conclusion that that argument has a scope different from that relied on before the General Court. That argument must be regarded as an amplification of a claim initially raised in the action before the General Court.
104 Nevertheless, as the General Court rejected that claim on the grounds, inter alia, that the arguments expounded therein were mere allegations that were difficult to understand and, in any event, entirely unsubstantiated and that those arguments did not make any reference to the rules of EU law, and as the argument relied on before the Court of Justice cannot remedy them, that claim must be rejected as inadmissible.
105 In the light of the foregoing, the third ground of appeal must be rejected as being in part inadmissible and in part unfounded.
106 By the first part of the fourth ground of appeal, IAE submits that the General Court held that its claim seeking to have the European Union held liable for unjust enrichment was unfounded on the sole ground that there was a contractual relationship between the parties, without taking into account the benefit that the Commission obtained from the service provided.
107 By the second part of that ground of appeal, IAE submits that the General Court wrongly took the view that its claim for liquidated damages was not supported, even though such a claim was ‘necessarily’ based on the service that it had already provided and the costs that it had already incurred.
108 The Commission contends that the fourth ground of appeal should be rejected as unfounded.
109 As regards the first part of the fourth ground of appeal, it must be borne in mind that, in order for an action for unjust enrichment to be allowed, it is essential that the enrichment be devoid of any valid legal basis. That condition is not satisfied, in particular, where the enrichment derives from contractual obligations (see, to that effect, judgments of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraph 46, and of 28 July 2011, Agrana Zucker, C‑309/10, EU:C:2011:531, paragraph 53).
110 It follows that, after recalling the case-law cited in paragraph 109 of this judgment, the General Court was right to conclude, in paragraph 133 of the order under appeal, that the alleged enrichment of the Commission derived from the MARE, Senior and ECRN contracts that it concluded with IAE, so that that enrichment could not be regarded as ‘unjust’ within the meaning of the case-law.
111 Accordingly, the first part of the fourth ground of appeal must be rejected as unfounded.
112 As regards the second part of the fourth ground of appeal, it must be borne in mind that, according to the Court’s settled case-law, the European Union’s non-contractual liability under the second paragraph of Article 340 TFEU is subject to the satisfaction of a number of conditions, namely the unlawfulness of the conduct alleged against the EU institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (see, inter alia, judgment of 14 October 2014, Giordano v Commission, C‑611/12 P, EU:C:2014:2282, paragraph 35 and the case-law cited).
113 However, in the case at hand, as the application at first instance did not contain any argument to substantiate the claim for liquidated damages, the General Court was right to reject, in paragraph 138 of the order under appeal, that claim as manifestly inadmissible pursuant to the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1) of its Rules of Procedure. In that regard, the applicant cannot reasonably claim that it could disregard the formal requirements set out in those provisions, as its claim was necessarily based on the service that it had already provided and on the costs that it had already incurred.
114 Consequently, the second part of the fourth ground of appeal must also be rejected as unfounded.
115 In the light of the foregoing, the fourth ground of appeal must be rejected as unfounded.
116 In the light of all the foregoing, the present appeal must be allowed and, accordingly, the order under appeal set aside.
117 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, where the decision of the General Court has been set aside, either give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
118 In the present case, as the first plea and the third to seventh pleas raised in the context of the action at first instance were rejected in the order under appeal as manifestly inadmissible on the erroneous ground that they related to the interpretation of, or even the alleged failure to perform, the clauses of the contracts at issue and not to the infringement of rules of EU law, the Court takes the view that the state of the proceedings does not permit final judgment to be given in the matter.
119 Consequently, the case must be referred back to the General Court.
120 As the case is being referred back to the General Court, the costs relating to the appeal proceedings must be reserved.