Case T‑478/16
Regine Frank
v
European Commission
Judgment of the General Court (Fifth Chamber), 11 June 2019
(Technological research and development — Framework Programme for Research and Innovation (2014-2020) — Calls for proposals and related activities under the ERC Work Programme for 2016 — Decision of the ERCEA rejecting a grant application as ineligible — Administrative appeal to the Commission — Implicit rejection decision — Partial ineligibility — Explicit rejection decision — Right to effective judicial protection)
1. Judicial proceedings — Application for legal aid — Grant criteria — Decision of a lawyer to decline to represent a party in a dispute during the proceedings before the General Court — No new lawyer appointed by the applicant for legal aid — Appointment of a lawyer at the initiative of the Registrar of the General Court — Conditions — Need to submit a new application for legal aid — Replacement became necessary due to objective circumstances unconnected with the behaviour of and beyond the control of the person concerned
(Rules of Procedure of the General Court, Arts 147(2) and (3) and 148(5))
(see paragraphs 65-72)
2. Action for annulment — Natural or legal persons — Interest in bringing proceedings — Action against an implicit rejection decision of the Commission concerning a grant application — Decision withdrawn due to the adoption of a subsequent explicit decision by the Commission — No longer any interest in bringing proceedings
(Council Regulation No 58/2003, Art. 22(1) and (5))
(see paragraphs 74-80, 85, 86)
3. Industry — Actions necessary to ensure the competitiveness of the industry — Technological research and development — ‘Horizon 2020’ Framework Programme for Research and Innovation — Grant application — Eligibility criteria — Presentation of a valid commitment letter from a host institution — Possibility of changing host institution during the evaluation procedure — Precluded
(European Parliament and Council Regulation No 1290/2013)
(see paragraphs 103, 114, 115)
Résumé
In its judgment in Frank v Commission (T‑478/16), delivered on 11 June 2019, the General Court dismissed the action brought by Ms Regine Frank seeking the annulment of the Commission’s decisions of 17 June 2016 and 16 September 2016 rejecting, respectively, implicitly and explicitly, the applicant’s grant application for a research project.
Following a call for proposals published in the Horizon 2020 framework programme, (1) Ms Regine Frank filed a grant application to the Executive Agency of the European Research Council (ERCEA) for a project relating to the transport of light in quasi-crystals and non-periodic structures. The applicant made that application on behalf of the Technische Universität Kaiserslautern (Kaiserslautern Technical University) (‘the University’). However, that university stated to the ERCEA that it was not available as a host institution for the project supported by the applicant. The University also stated that the applicant had, without its authorisation, used for the 2016 call for proposals a commitment letter issued for the 2015 call for proposals. In the absence of a valid commitment letter, the grant application was rejected by the ERCEA. The Commission confirmed that rejection initially implicitly and subsequently in an explicit rejection decision.
In the first place, the General Court was called upon to rule on the consequences of a decision by a lawyer to no longer represent an applicant benefiting from legal aid during the proceedings before the General Court. In the present case, by order of 16 February 2017, the General Court had granted the applicant legal aid and approved her choice as to the identity of her representative. However, on 5 March 2018, the applicant’s representative informed the Registrar of the General Court that he no longer agreed to represent the applicant. Subsequently, the General Court informed the applicant that she had to appoint a different lawyer to represent her at the hearing on 31 January 2019. By the day of the hearing, the applicant had not acted on that request by the General Court. She then requested, in person, that Article 148(5) of the Rules of Procedure of the General Court apply, which lays down the conditions in which a lawyer can be appointed, at the initiative of the Registrar of the General Court, to represent a party before the General Court.
In that regard, the General Court held that, where the person concerned has herself proposed a lawyer, this means, first, that if Article 148(5) of the Rules of Procedure is applied in order to replace that lawyer with another, a new legal aid application must be made in accordance with Article 147(2) and (3) of the Rules of Procedure. Secondly, a lawyer is only to be replaced in that way under Article 148(5) of the Rules of Procedure when it becomes necessary to do so due to objective circumstances unconnected with the behaviour of and beyond the control of the person concerned, such as the death or retirement of the lawyer or where the lawyer has breached professional or ethical obligations. The fact that a lawyer declines to represent a party in proceedings on grounds of behaviour by that party likely drastically to constrain his duties as a representative cannot therefore be regarded as a valid reason capable of justifying application of Article 148(5) of the Rules of Procedure.
In the second place, the General Court dismissed as inadmissible the application for annulment of the Commission’s implicit rejection decision. In that context, the General Court held that the Commission’s failure to respond is to be taken as a decision implicitly rejecting the administrative appeal, against which an action for annulment may be brought. However, before the action in this case was brought before the General Court, the Commission adopted a decision explicitly rejecting the administrative appeal, thus withdrawing the implicit rejection decision.
In the third place, as regards the eligibility criteria for the grant application, the General Court pointed out that, in the circumstances of the present case, the applicant should have, for the purpose of analysing her grant application, relied on a valid commitment letter from a host university. Lastly, the General Court stated that the identity of the host institution can in fact be seen as an essential factor in the context of a grant application and, as such, cannot be replaced or added to without substantially changing that application. The applicant therefore cannot criticise the ERCEA for not allowing her to find a new host institution.