ORDER OF THE GENERAL COURT (Fourth Chamber)
20 April 2021 (*)
(Action for annulment and for damages – Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) – MARE, Senior and ECRN projects – Commission decision to recover sums unduly paid – Applicant who has stopped responding to the Court’s requests – No need to adjudicate)
In Case T‑539/13 RENV,
Inclusion Alliance for Europe GEIE, established in Bucharest (Romania),
applicant,
v
European Commission, represented by F. Moro, acting as Agent,
defendant,
APPLICATION, first, under Article 263 TFEU, for annulment of Commission Decision C(2013) 4693 final of 17 July 2013 concerning the recovery from the applicant of the total sum of EUR 212 411.89, plus interest, paid to it in the context of the MARE, Senior and ECRN projects, and, secondly, under Article 268 TFEU, for compensation for the material and non-material harm which the applicant claims to have suffered as a result of that decision,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise and P. Nihoul (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
1 The applicant, Inclusion Alliance for Europe GEIE, is a company established in Romania which operates in the health and social-integration sector.
2 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 Commission of the European Communities concluded with the applicant 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.
3 Furthermore, on 6 October 2008, in the context of one of 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 Commission concluded with the applicant a third grant agreement entitled ‘European Civil Registry Network’ (‘the ECRN contract’).
4 On 17 July 2013, following several audits which showed that the financial management of the projects in question had not been carried out in compliance with the conditions laid down in the MARE, Senior and ECRN contracts and the general conditions of the corresponding framework programmes, the Commission adopted Decision C(2013) 4693 final concerning the recovery from Inclusion Alliance for Europe GEIE of the total sum of EUR 212 411.89, plus interest (‘the contested decision’).
5 In accordance with Article 299 TFEU, the contested decision is enforceable for the recovery of part of the financial contributions received by the applicant under the MARE, Senior and ECRN contracts and of default interest on those sums.
6 By application lodged at the Court Registry on 2 October 2013, the applicant brought an action seeking suspension of the operation of the contested decision, annulment of ‘all other investigation procedures carried out by the Commission or, at its request, by other organisations’, annulment of the contested decision under Article 263 TFEU and payment by the Commission, on the basis of Article 268 TFEU, of damages for the material and non-material harm which it claims to have suffered as a result of the application of that decision.
7 By order of 21 April 2016, Inclusion Alliance for Europe v Commission (T‑539/13, not published, EU:T:2016:235; ‘the initial order’), the Court dismissed the action as being, in part, manifestly inadmissible and, as to the remainder, manifestly lacking any foundation in law. As regards the application for annulment of the contested decision, it found that several pleas in law were manifestly inadmissible, on the ground that they were not intended to assess the legality of the contested act in the light of a rule of EU law, but were instead based on the interpretation and breach of terms of the contract, which fell within Article 272 TFEU and not Article 263 TFEU.
8 By application lodged at the Registry of the Court of Justice on 7 July 2016, the applicant brought an appeal against the initial order.
9 By a separate document lodged at the Registry of the Court of Justice on the same day, the applicant submitted an application for interim measures under Article 278 TFEU seeking suspension of the operation of the initial order and of the contested decision.
10 By order of 6 September 2016, Inclusion Alliance for Europe v Commission (C‑378/16 P‑R, not published, EU:C:2016:668), the application for interim measures was dismissed.
11 By judgment of 16 July 2020, Inclusion Alliance for Europe v Commission (C‑378/16 P, EU:C:2020:575; ‘the judgment on appeal’), the Court of Justice set aside the initial order on the ground that the General Court had erred in law in ruling that, in the context of an action brought on the basis of Article 263 TFEU, the EU judicature had to assess the legality of the act concerned solely in the light of EU law and that a failure to perform the clauses of the contract concerned or an infringement of the provisions of national law applicable to that contract could be relied on only in the context of an action based on Article 272 TFEU.
12 Since the state of the proceedings did not permit final judgment to be given in the matter, the Court of Justice referred the case back to the General Court (the judgment on appeal, paragraphs 117 to 119) and reserved the costs. In accordance with Article 88 of the Rules of Procedure of the Court of Justice, the judgment on appeal was served on the parties. For the applicant, service was effected upon Mr D’Amico, who was not its lawyer but its legal representative.
13 On 31 July 2020, the Court invited the parties to lodge their written observations on the conclusions to be drawn from the judgment on appeal for the outcome of the proceedings, in accordance with Article 217(1) of the Rules of Procedure of the General Court. As the judgment was served on Mr D’Amico, the invitation to lodge written observations was addressed to him.
14 On 18 August 2020, the Court Registry sent an email to the applicant requesting that it acknowledge receipt of the letter of 31 July 2020.
15 That email went unanswered.
16 By letter of 28 September 2020, the Court again invited the applicant to submit its observations on the conclusions to be drawn from the judgment on appeal for the outcome of the proceedings.
17 That letter once more went unanswered.
18 In that regard, the Court Registry sent an email on 16 October 2020 to Mr Famiani, who had been the applicant’s lawyer in both the proceedings which gave rise to the initial order and the order of 6 September 2016, Inclusion Alliance for Europe v Commission (C‑378/16 P‑R, not published, EU:C:2016:668), and initially in the proceedings which gave rise to the judgment on appeal, asking him whether he continued to represent the applicant.
19 There was also no reply to that email.
20 Noting that the applicant had stopped responding to its requests following those various attempts to contact it, the Court, by way of measures of organisation of procedure as laid down in Article 89 of the Rules of Procedure, sent a letter on 21 December 2020 inviting the parties to submit their observations on the Court potentially finding of its own motion, by reasoned order, that there was no longer any need to adjudicate in accordance with Article 131(2) of the Rules of Procedure.
21 That request was given a deadline of 8 January 2021. As regards the applicant, it was addressed both to Mr D’Amico, its legal representative, and to Mr Famiani, its lawyer.
22 On the date mentioned in paragraph 21 above, the Court had received the Commission’s reply but had no record of any response from Mr D’Amico or from Mr Famiani.
23 In those circumstances, it is appropriate to apply Article 131(2) of the Rules of Procedure, under which, if the applicant stops responding to the Court’s requests, the Court may, after hearing the parties, find of its own motion by reasoned order that there is no longer any need to adjudicate.
24 In so far as is necessary, it should be noted that, on 18 January 2021, the Court received a letter from a lawyer, written in English and therefore in a language other than the language of the case, who claimed to represent the applicant and requested permission to submit observations on its behalf within a certain time limit, explaining that the applicant had not been informed of the Court’s previous correspondences because of ‘communication problems’ and the ‘pandemic’s implications’. He also stated that he had only received the letter of 21 December 2020 on 18 January 2021 and requested additional time in order to become better informed of the case.
25 That letter cannot call into question the finding made in paragraph 23 above.
26 First of all, it should be noted that that letter was not sent to the Court within the time limit referred to in paragraph 21 above, but 10 days after its expiry.
27 Next, the applicant’s new lawyer merely alluded in general terms to ‘communication problems’ and the ‘pandemic’s implications’, without providing any concrete detail to substantiate how those factors could have prevented the applicant from providing any response whatsoever to the Court’s requests since the judgment on appeal had been served.
28 In that regard, the Court must hold, of its own motion, in the present case, in view of the applicant’s inaction and the lack of any concrete explanation on its part justifying or supporting the reasons for that inaction, that, as is provided for in Article 131(2) of the Rules of Procedure, there is no longer any need to adjudicate in the present action (see, to that effect, order of 22 June 2016, Marcuccio v European Union, T‑409/14, not published, EU:T:2016:398, paragraphs 24 and 25).
Costs
29 Under Article 219 of the Rules of Procedure, in its decision given after it has been set aside and referred back to the General Court, the General Court shall decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice.
30 In the order of 6 September 2016, Inclusion Alliance for Europe v Commission (C‑378/16 P‑R, not published, EU:C:2016:668), and subsequently in the judgment on appeal, the costs were reserved.
31 The Court must therefore rule, in the present order, on the costs relating to the present proceedings and on the costs relating to the proceedings which gave rise to the initial order, to the order of 6 September 2016, Inclusion Alliance for Europe v Commission (C‑378/16 P‑R, not published, EU:C:2016:668), and to the judgment on the appeal.
32 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties shall bear their own costs. Furthermore, under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court.
33 First of all, in the present case, the applicant failed in the proceedings which gave rise to the order of 6 September 2016, Inclusion Alliance for Europe v Commission (C‑378/16 P‑R, not published, EU:C:2016:668).
34 Next, it is apparent from the initial order and the judgment on appeal that the Court of Justice did not follow the Commission’s arguments concerning the admissibility of several pleas in law and grounds of appeal relied on in support of the application for annulment brought before the General Court.
35 On the other hand, it does not follow from those decisions that the Commission was not followed on the question of the merits of those pleas in law and grounds of appeal, on the application for suspension of operation, on the application for annulment of ‘all the other investigation procedures carried out by [it] or at its request by other organisations’ and on the claim for damages.
36 Lastly, it is apparent from paragraphs 13 to 27 above that the decision that there is no longer any need to adjudicate in the present proceedings is the direct result of the applicant’s conduct, namely its failure to reply within the time limit prescribed to the various requests from the Court.
37 In those circumstances, it is appropriate to order each party to bear its own costs relating to the present proceedings and to the proceedings which gave rise to the initial order, to the order of 6 September 2016, Inclusion Alliance for Europe v Commission (C‑378/16 P‑R, not published, EU:C:2016:668), and to the judgment on appeal.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. There is no longer any need to adjudicate.
2. The European Commission and Inclusion Alliance for Europe GEIE shall bear their own costs relating to the proceedings in the Cases T‑539/13, C‑378/16 P‑R, C‑378/16 P and T‑539/13 RENV.
Luxembourg, 20 April 2021.