Case T‑106/13

(publication by extracts)

d.d. Synergy Hellas Anonymi Emporiki Etaireia Parochis Ypiresion Pliroforikis

v

European Commission

(Arbitration clause — Sixth and Seventh Framework Programmes for research, technological development and demonstration activities — Early termination of contracts — Legitimate expectations — Proportionality — Good faith — Non-contractual liability — Reclassification of the action — Coexisting applications to establish contractual and non-contractual liability — Early warning system (EWS) — Sufficiently serious breach of a rule of law conferring rights on individuals — Causal link)

Summary — Judgment of the General Court (Fourth Chamber), 18 November 2015

1.      Judicial proceedings — General Court seised under an arbitration clause — Contracts concluded under a specific research, technological development and demonstration programme — Early termination of the contracts by reason of financial irregularities by the co-contractor — Action in contractual liability — Applicant withdrawing from its action concerning another contract — Applicant raising pleas identical to those raised in the other action — Lawfulness

(Art. 272 TFEU)

2.      Judicial proceedings — General Court seised under an arbitration clause — Contracts concluded under a specific research, technological development and demonstration programme — Early termination of the contracts by reason of financial irregularities by the co-contractor — Action in contractual liability — Existence of a current interest — Assessment of the eligibility of the costs declared still ongoing — Irrelevant

(Art. 272 TFEU)

3.      EU law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities

4.      Judicial proceedings — General Court seised under an arbitration clause — Contracts concluded under a specific research, technological development and demonstration programme — Early termination of the contracts by reason of financial irregularities by the co-contractor — Action in contractual liability — Reliance on the principle of the protection of legitimate expectations — Inadmissibility — Limits — Compliance with the principle that contracts must be performed in good faith

(Art. 272 TFEU)

5.      Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness

(Rules of Procedure of the General Court (1991), Art. 48(2))

6.      Judicial proceedings — General Court seised under an arbitration clause — Contracts concluded under a specific research, technological development and demonstration programme — Early termination of the contracts by reason of financial irregularities by the co-contractor — Action in contractual liability — Invocation of the principle of proportionality — Lawfulness — Obligation to perform the contract in good faith

(Art. 5(4) TEU; Art. 272 TFEU)

7.      Actions for damages — Non-contractual liability — Action relating in reality to a contractual dispute — Reclassification of the action — Conditions — Coexistence of contractual and non-contractual claims — Conditions

(Arts 268 TFEU and 272 TFEU)

1.      In the case of an action in contractual liability following the early termination by the Commission of a contract for subsidy concluded in the context of a specific research, technological development and demonstration programme by reason of financial irregularities allegedly committed by the co-contractor, the withdrawal of the latter in another case, concerning a similar contract, does not affect its right, in the context of the present heads of claim relating to the Commission’s contractual liability based on the termination of the contract in question, to rely on irregularities in respect of the performance of the contract in the other case.

In the event of withdrawal, the General Court does not rule either on admissibility or on the substance, but takes note of the applicant’s wish not to continue the judicial proceedings. The order concerning withdrawal does not constitute res judicata. Where an applicant has withdrawn his action which was pending, the dispute arising from it ceases to exist and therefore the situation of lis alibi pendens with another action disappears. The Court of Justice has stated that the interest in avoiding the situation where parties use that possibility in a manner contrary to the principle of procedural economy does not require a situation of lis alibi pendens to persist even in relation to an action which the applicant has withdrawn, as that interest is sufficiently protected by the applicant being ordered to pay the costs.

(see paras 46, 47)

2.      In the case of an action in contractual liability following the early termination by the Commission of a contract for subsidy concluded in the context of a specific research, technological development and demonstration programme by reason of financial irregularities allegedly committed by the co-contractor, the fact that the Commission is currently assessing whether the costs presented by the applicant are eligible and thus whether payment of a certain sum is owed does not permit a finding to be made that the applicant has no direct and existing interest in obtaining an order from the General Court that the Commission make a payment in performance of the contract. From the time the action is brought, it is clear that the applicant would have an advantage in its action being successful.

Furthermore, the Commission cannot claim that the applicant has no interest in bringing proceedings on the ground that, at the time the action was brought, its non-payment to the applicant of the sum due in performance of the contract was uncertain or hypothetical. When the action was brought, it was certain that the Commission had not paid the sum in question.

The questions whether the Commission was required to pay the sum in question before the action was brought, whether it could suspend payment on account of the ongoing audit and whether the Court should suspend the judicial proceedings pending the end of the Commission audit or, on the other hand, whether it should rule directly on the eligibility of the costs require an assessment of aspects relating to the substance of the action and not to its admissibility.

That conclusion is not called into question by the case-law concerning the obtaining from the EU judicature of a declaration authorising a party to keep sums already paid by the Commission under the contracts at issue. Whilst, in the case of actions for performance intended to obtain satisfaction of specific claims, the interest in bringing proceedings may as a general rule be inferred without difficulty from the context of the claim itself, the legitimate interest of the applicant in obtaining an abstract declaration by the Court that a legal relationship or a particular right does or does not exist usually requires specific reasoning. It is not for the EU judicature to issue abstract legal opinions.

(see paras 51-55)

3.      See the text of the decision.

(see para. 66)

4.      In the case of an action in contractual liability following the early termination by the Commission of a contract for subsidy concluded in the context of a specific research, technological development and demonstration programme by reason of financial irregularities allegedly committed by the co-contractor, the General Court must declare inadmissible a claim alleging infringement by the Commission, in its performance of the said contract, of the principle of protection of legitimate expectations which governs the relationship of subordination between a citizen and the authorities.

That principle falls within the review of legality under Article 263 TFEU, which the General Court may conduct in respect of acts adopted by the institutions.

However, in an action concerning contractual liability, the General Court hears the case as the court having jurisdiction over the contract. In that regard, the fact that that contract is governed inter alia by EU law cannot change the jurisdiction of the Court as defined by the legal remedy chosen by the applicant. In its application to establish contractual liability, the applicant can therefore make complaints against the Commission only in respect of infringements of the law applicable to the contract.

However, it cannot be ruled out that a form of legitimate expectations may be relied on in contract law as it contributes to respect for the obligation on the parties to a contract to perform it in good faith. That follows from the fact that that principle of performance of agreements in good faith precludes any performance of the contract which constitutes an abuse of rights.

(see paras 66-68, 72)

5.      See the text of the decision.

(see para. 70)

6.      See the text of the decision.

(see paras 87-89)

7.      Given the autonomy of contractual and non-contractual remedies and the specific conditions governing liability in each of those remedies, the General Court is required to determine whether the action before it has as its subject-matter a claim for damages based objectively on rights and obligations of a contractual nature or of a non-contractual nature.

The mere invocation of legal rules or principles not flowing from a contract between the parties, but which are binding on them, cannot have the consequence of altering the contractual nature of a dispute.

However, since under the FEU Treaty the EU Courts have jurisdiction, in principle, to decide both on an action concerning the non-contractual liability of the institutions and on an action concerning the contractual liability of the institutions where they have concluded a contract containing an arbitration clause, where an action to establish non-contractual liability is brought before the General Court, when the dispute is, in point of fact, contractual in nature, the Court reclassifies the action, provided that the conditions for such a reclassification are satisfied.

More specifically, when faced with a dispute which is contractual in nature, the Court is unable to reclassify an action either where the applicant’s express wish not to base its application on Article 272 TFEU precludes such reclassification, or where the action is not based on any plea alleging infringement of the rules governing the contractual relationship in question, whether they be contractual clauses or provisions of the national law designated in the contract.

In addition, the infringement of a contractual provision by an institution cannot in itself establish the non-contractual liability of that institution with regard to one of the parties with which it concluded the contract containing that provision. In such a case, the unlawful conduct attributable to the institution is purely contractual in nature and stems from its undertaking as a contracting party and not from any other status, such as its capacity as an administrative authority. Consequently, in those circumstances, the claim of infringement of a contractual provision in support of an application to establish non-contractual liability must be declared ineffective.

However, it cannot be ruled out that the contractual and the non-contractual liability of an EU institution may coexist in respect of one of the parties with which it has concluded a contract, as the nature of unlawful conduct attributable to an institution which causes damage and may be the subject of a claim seeking compensation for non-contractual damage is not predefined. Assuming that such coexisting liability for the institutions exists, it would be possible only if the unlawful conduct attributed to the institution in question constitutes a breach of not only a contractual obligation, but also of a general obligation incumbent on it and that unlawful conduct in respect of the general obligation has caused damage other than damage stemming from the improper performance of the contract.

(see paras 145-150)