Provisional text
ORDER OF THE PRESIDENT OF THE GENERAL COURT
29 July 2010 (*)
(Application for interim measures – Sixth Framework Programme for research, technological development and demonstration activities – Letter confirming the findings of a financial audit – Application for suspension of operation of a measure – Disregard of formal requirements – Inadmissibility)
In Case T‑252/10 R,
Cross Czech a.s., established in Prague (Czech Republic), represented by T. Schollaert, lawyer,
applicant,
v
European Commission, represented by R. Lyal and W. Roels, acting as Agents,
defendant,
APPLICATION for suspension of operation of the Commission’s letter of 12 March 2010 confirming the findings of the audit of financial statements submitted by the applicant for the period from 1 February 2005 to 30 April 2008 in respect of the eMapps.com, CEEC IST NET and Transfer-East projects,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
The facts, procedure and forms of order sought by the parties
1 The applicant, Cross Czech a.s., entered into several contracts with the Commission of the European Communities, acting on behalf of the European Community, under the Sixth Framework Programme of the Community for research, technological development and demonstration activities contributing to the creation of the European Research Area and to innovation (2002-2006) established by Decision No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 (OJ 2002 L 232, p. 1), namely contract No 028051 in relation to the eMapps.com project, contract No 015942 in relation to the CEEC IST NET project and contract No 027767 in relation to the Transfer-East project. The contracts in question all include an arbitration clause which provides that the Court of First Instance of the European Communities is to have jurisdiction to hear any disputes between the parties as regards the validity, the application or any interpretation of those contracts.
2 By letter of 12 March 2010, the Commission informed the applicant that it was confirming the findings of the audit of financial statements for the period from 1 February 2005 to 30 April 2008 in respect of the eMapps.com, CEEC IST NET and Transfer-East projects, and detailed the measures to be taken, in particular the corrections to be made.
3 By application lodged at the Court Registry on 28 May 2010, the applicant brought an action for annulment of the Commission’s letter of 12 March 2010 (‘the contested measure’).
4 By a separate document, lodged at the Court Registry on 18 June 2010, the applicant submitted the present application for interim measures, in which it claims that the President of the General Court should suspend application of the contested measure.
5 In its written observations, lodged at the Court Registry on 9 July 2010, the Commission contends that the President of the General Court should dismiss the application for interim measures and order the applicant to pay the costs. It pleads, in particular, the inadmissibility of the application for interim measures on the basis (i) of the contractual nature of the contested measure, which precludes such a measure from being the object of an application for annulment, and (ii) of the fact that the contested measure is, in any event, a preparatory act which does not have any effect on the applicant’s legal position.
Law
6 It is clear from Articles 278 TFEU and 279 TFEU, in conjunction with Article 256(1) TFEU, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the Court be suspended or prescribe any necessary interim measures.
7 Since failure to comply with the Rules of Procedure of the General Court constitutes an absolute bar to proceedings, it is for the judge hearing the application for interim measures to consider of his own motion at the outset of the proceedings whether the applicable provisions of those Rules have been complied with (orders of the President of the General Court in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 43, and of 2 August 2006 in Case T‑163/06 R BA.LA. Di Lanciotti Vittorio and Others v Commission, not published in the ECR, paragraph 35).
8 Article 104(2) of the Rules of Procedure provides that applications for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, suspension of application or other interim measures may be ordered if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as it must, in order to avoid serious and irreparable harm to the applicant’s interests, be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (orders of the President of the Court of Justice in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30, and of 12 May 2010 in Case C‑5/10 P‑R Torresan v OHIM, paragraphs 14 and 15).
9 Furthermore, under Article 104(3) of the Rules of Procedure, the application must, in particular, be made by a separate document and, under Article 44(1)(c) of those Rules, any application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based.
10 It follows from a combined reading of those provisions of the Rules of Procedure that an application for interim relief must be sufficient in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out in a coherent and comprehensible fashion in the application for interim relief itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if it is annexed to the application for interim relief, cannot make up for the absence of essential elements in that application (orders of the President of the General Court in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 34; and Aden and Others v Council and Commission, paragraph 52; see also order of the President of the Court of Justice of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission, paragraph 13).
11 Moreover, point 68 of the Practice Directions to Parties expressly provides that ‘[t]he application … must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings’.
12 In the present case, as regards the condition relating to a prima facie case, the applicant confines itself in the application for interim measures to making general observations and to summarising the claims which appear in the application in the main proceedings. The applicant’s whole argument in relation to the unlawfulness of the contested measure is summarised as follows:
‘In the Application for Annulment, the Applicant submits that the Decision is seriously flawed. In the Decision the Commission confirmed the findings of the Audit, without sufficient reasoning and further examination and without properly assessing the Applicant’s reservations in relation to the Audit findings and the manner in which the Audit was conducted. The Applicant rebuts each of the Audit findings on the basis of written evidence and demonstrates the Auditor’s lack of professional competence and due care, the fact that the description of the Audit procedure in the Final Audit Report does not correspond to reality, that the Applicant was not provided with a chance to express its views during the Audit process and that the Auditor was prejudiced and not impartial towards the Applicant and refused to provide the Applicant with access to information. The Applicant then sets out that the Decision constitutes an infringement of the Treaty or of any rule of law relating to its application, as it:
– is based on incorrect and insufficient fact finding by the Commission;
– reflects the incorrect application of the contracts relating to the Audited Projects, in particular in respect of the finding that the Applicant committed a breach of these contracts;
– is based on manifest errors of assessment of the facts relating to the alleged breach of the contracts relating to the Audited Projects, resulting in a failure to comply with the necessary legal standard and thus in error of law;
– is based on defects of reasoning; …
– constitutes a breach of the Applicant’s procedural rights in the procedure preceding the issuing of the Decision.’
13 Thus the applicant does not indicate the passages of the contested measure in respect of which it claims that rules of law have been infringed by the Commission, or the elements of fact or of law on which it relies. No reference is made to the decision which is said to be contained in the contested measure, except in order to describe its impact on the applicant. It follows from this that the application for interim measures does not contain a statement of the factual context or of the elements of law relating to the proceedings between the applicant and the Commission, nor is it intelligible, in itself, without reference to the application lodged in the main proceedings.
14 Furthermore, the application in the main proceedings lodged at the Court Registry cannot make up for the absence of an adequate explanation in the application for interim measures of the constituents of a prima facie case (see, to that effect, order of the President of the General Court of 25 May 2009 in Case T‑159/09 R Biofrescos v Commission, not published in the ECR, paragraph 17).
15 Whilst the application for interim measures may be supplemented on specific points by references to the documents which are annexed to it, those documents cannot make up for the absence of essential elements in that application (see paragraph 10 above). It is not for the judge hearing the application for interim measures to seek, in place of the party concerned, those matters contained in the annexes or in the main application which would support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim measures would, moreover, render ineffective the provision of the Rules of Procedure which requires that the application for interim measures be made by a separate document (orders in Stauner and Others v Parliament and Commission, paragraph 37, and Biofrescos v Commission, paragraph 18).
16 Consequently, the application for interim measures manifestly does not satisfy the requirements of Article 104(2) and (3) of the Rules of Procedure and must, therefore, be dismissed as inadmissible, and there is no need to consider the other questions of admissibility raised by the Commission.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 29 July 2010.