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)
In Case T‑478/16,
Regine Frank, residing in Bonn (Germany), represented by S. Conrad, lawyer,
applicant,
v
European Commission, represented by R. Lyal, L. Mantl and B. Conte, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU seeking the annulment of, first, the Commission’s decision of 17 June 2016, and, secondly, the Commission’s decision of 16 September 2016, rejecting, respectively, implicitly and, explicitly, the applicant’s administrative proceedings pursuant to Article 22(1) of Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1),
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, I. Labucka (Rapporteur) and I. Ulloa Rubio, Judges,
Registrar: N. Schall, Administrator,
having regard to the written procedure and further to the hearing on 31 January 2019,
gives the following
Judgment
I. Legal context
1 The Horizon 2020 framework programme for research and innovation (‘the Horizon 2020 framework programme’) was set up, on the basis of Articles 173 and 182 TFEU, by Regulation (EU) No 1290/2013 of the European Parliament and of the Council of 11 December 2013 laying down the rules for participation and dissemination in ‘Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020)’ and repealing Regulation (EC) No 1906/2006 (OJ 2013 L 347, p. 81) and by Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC (OJ 2013 L 347, p. 104).
2 In accordance with Article 6 of Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1), the European Commission entrusted certain tasks in the management of the Horizon 2020 framework programme to the Executive Agency of the European Research Council (ERCEA).
3 The tasks that the Commission entrusted to the ERCEA include that relating to the funding of projects under the ‘Excellent science’ strand established by Council Decision 2013/743/EU of 3 December 2013 establishing the specific programme implementing Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020) and repealing Decisions 2006/971/EC, 2006/972/EC, 2006/973/EC, 2006/974/EC and 2006/975/EC (OJ 2013 L 347, p. 965).
4 For 2016, the selection criteria and evaluation procedures for grant applications were defined in the Work Programme of the European Research Council (ERC).
5 The procedure for submitting and for evaluating grant applications is laid down by Commission Decision C(2014)2454 of 15 April 2014 on the European Research Council rules for submission of proposals, and the related evaluation, selection and award procedures relevant to the Specific Programme of Horizon 2020, as amended by Commission Decision C(2015)4975 of 23 July 2015 (‘the ERC rules for submission and evaluation’).
6 The grant application submission and evaluation procedure is set out in section 2.1 to 2.5 of the ERC rules for submission and evaluation.
7 According to section 2.2 of the ERC rules for submission and evaluation, grant applications must be filed by a principal investigator on behalf of a host institution. The host institution acts both as the applicant entity and as a party to the grant agreement to be concluded with the ERCEA.
8 To be eligible, each application must, at the time of submission and no later than expiry of the period for making grant applications, be accompanied by, inter alia, a commitment letter from the host institution. Incomplete proposals must be declared ineligible.
9 In order to be evaluated, the grant application submitted must also satisfy all the eligibility and admissibility criteria established in the ERC Work Programme 2016.
10 According to the ERC Work Programme 2016, this applies in particular where an application made in 2014 or 2015 was evaluated as category C, thereby precluding a new grant application being made for the ECR Work Programme 2016 (‘the barring clause’).
11 Under Article 20(2)(a) of Regulation No 1290/2013, applicants are informed of the outcome of the scientific evaluation of their application within a maximum period of five months from the final date for submission of complete proposals.
12 In accordance with Article 16 of Regulation No 1290/2013, the evaluation of the application can be reviewed.
13 In accordance with Article 17 of Regulation No 1290/2013, any candidate can file a complaint regarding its involvement in the Horizon 2020 framework programme.
14 For rejection decisions made by the executive agencies, Article 22(1) to (5) of Regulation No 58/2003 provides for a review of legality by the commission of
‘1. Any act of an executive agency which injures a third party may be referred to the Commission by any person directly or individually concerned or by a Member State for a review of its legality.
Administrative proceedings shall be referred to the Commission within one month of the day on which the interested party or Member State concerned learnt of the act challenged.
After hearing the arguments adduced by the interested party or by the Member State concerned and those of the executive agency, the Commission shall take a decision on the administrative proceedings within two months of the date on which proceedings were instituted. Without prejudice to the Commission’s obligation to reply in writing giving grounds for its decision, the failure by the Commission to reply within that deadline shall be taken as implicit rejection of the proceedings.
…
5. An action for annulment of the Commission’s explicit or implicit decision to reject the administrative appeal may be brought before the Court …, in accordance with [Article 263 TFEU].’
II. Background to the dispute
15 On 1 August 2015, the Commission published a notice entitled ‘Calls for proposals and related activities under the ERC Work Programme 2016 under Horizon 2020 – the Framework Programme for Research and Innovation (2014-2020)’ in the Official Journal of the European Union (OJ 2015 C 253, p. 12).
16 On 17 November 2015, the applicant, Regine Frank, via the electronic exchange system made available to participants in the Horizon 2020 framework programme, filed a grant application to the ERCEA for a project relating to the transport of light in quasi-crystals and non-periodic structures (‘the grant application’).
17 The applicant made the grant application on behalf of the Technische Universität Kaiserslautern (Kaiserslautern Technical University) (‘the University’).
18 On the same day, the University withdrew the grant application on the grounds that the applicant was not eligible to submit a grant application for 2016 and that the University was not available to host the project supported by the applicant.
19 Still on the same day, the applicant resubmitted the grant application, which was again withdrawn by the University, before being submitted a third time by the applicant.
20 On 30 November 2015, the University sent the ERCEA a letter stating 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 by the University for the 2015 call for proposals.
21 By letter of 18 March 2016, the ERCEA informed the applicant, first, that her grant application had been rejected, on the grounds that it was ineligible, and, secondly, of the means of redress (‘the ERCEA rejection decision’).
22 By letter of 16 April 2016, the applicant requested an evaluation review, within the meaning of Article 16 of Regulation No 1290/2013, which the ERCEA reclassified as an enquiry, within the meaning of Article 17 of the same regulation, relating to examination of eligibility for the Horizon 2020 framework programme.
23 By letter of 17 April 2016, under Article 22 of Regulation No 58/2003, the applicant challenged the legality of the ERCEA’s decision before the Commission (‘the administrative appeal’).
24 By letter of 24 May 2016, the ERCEA informed the applicant that re-examination of the eligibility of her grant application had produced the same outcome.
25 By letter of 3 June 2016, the Commission asked the applicant whether she was to continue her administrative appeal.
26 On 17 June 2016, since the Commission had not responded to the administrative appeal within the two-month time limit laid down in the third subparagraph of Article 22(1) of Regulation No 58/2003, the Commission implicitly rejected the administrative appeal (‘the implicit rejection decision’).
27 By letter of 25 June 2016, the applicant informed the Commission that she wished to continue the administrative appeal.
28 By letter of 10 August 2016, the applicant enquired about the progress of her administrative appeal.
29 By letter of the same day, the Commission replied that a decision would be made on that appeal during the month of September.
30 By letter of 30 September 2016, the Commission notified its decision of 16 September 2016 rejecting the administrative appeal under Article 22 of Regulation No 58/2003, on the grounds that a grant application without a valid commitment letter was ineligible (‘the explicit rejection decision’).
31 By letter of 9 October 2016, the applicant sent a new complaint to the Commission.
32 By letter of 28 October 2016, the Commission informed the applicant that the procedure under Article 22 of Regulation No 58/2003 had been completed and that the explicit rejection decision could now be challenged in an action for annulment before the General Court.
III. Procedure and forms of order sought by the parties
33 By document lodged at the General Court Registry on 26 August 2016, the applicant applied for legal aid, under Article 147 of the Rules of Procedure of the General Court.
34 The Applicant brought this action by application lodged at the General Court Registry on 26 October 2016.
35 By order of 16 February 2017, the applicant was granted legal aid.
36 By letter of 3 May 2017, in accordance with Article 106 of the Rules of Procedure, the General Court Registry asked the parties whether they wished to be heard.
37 By letter of 6 June 2017, the applicant requested an opportunity to be heard in a hearing.
38 The Commission did not reply within the prescribed time limit.
39 The parties were given notice to attend a hearing, which was held on 26 January 2018.
40 At the hearing, the applicant applied for the judges of the Fifth Chamber of the General Court and the Registrar to be recused (‘the recusal application’).
41 The following is apparent from the minutes of the hearing:
‘The applicant’s representative applied for the Fifth Chamber to be recused, although stating that he did not endorse the grounds of that application. The defendant made no observations on the application. With leave from the President, in the presence of and supervised by the applicant’s representative, Ms Frank lodged a written submission supporting the grounds for the recusal application.’
42 By decision of 26 February 2018, the Vice-President of the General Court dismissed the recusal application.
43 By letter of 5 March 2018, the applicant’s representative informed the General Court Registry that he no longer agreed to represent the applicant because she had, without his agreement or knowledge, first, sent various documents and emails not only to the General Court Registry but also to a number of its members and, secondly, had, at the hearing, made an application for recusal that he did not endorse. In that letter he also stated that he could no longer represent the applicant fully independently, within the meaning of the third subparagraph of Article 19 of the Statute of the Court of Justice of the European Union, and noted that the applicant herself had told the General Court in writing that she no longer had confidence in him.
44 By decision of 14 March 2018, the General Court gave the applicant until 16 May 2018 to inform the General Court Registry of the identity of her new representative.
45 By application lodged at the General Court Registry on 23 May 2018, the applicant applied for legal aid, under Article 147 of the Rules of Procedure.
46 She made that application with a view to appealing against the decision of the Vice-President of the General Court of 26 February 2018 dismissing her recusal application.
47 By order of 29 June 2018, Frank v Commission (T‑478/16, not published, EU:T:2018:417), the President of the Fifth Chamber of the General Court referred the case to the Court of Justice, under the second paragraph of Article 54 of the Statute of the Court of Justice of the European Union.
48 By order of 22 November 2018, the Court of Justice dismissed the application for legal aid.
49 On 6 December 2018, the General Court decided to resume the hearing of oral argument in this case, and set the hearing for 31 January 2019.
50 Since the applicant had not informed the General Court of the name of her new representative, notice of the hearing of 31 January 2019 was served on Sebastian Conrad.
51 On 20 December 2018, Mr Conrad informed the General Court Registry that he would not be representing the applicant at that hearing.
52 At the hearing of 31 January 2019, the President of the Fifth Chamber of the General Court noted that the parties had been duly given notice to attend, in accordance with Article 108(1) of the Rules of Procedure.
53 Since she was not represented by a lawyer at that hearing, the applicant, in person, requested that Article 148(5) of the Rules of Procedure apply.
54 The Commission informed the Court that it was referring to its written submissions.
55 On conclusion of the hearing of 31 January 2019, the oral part of the procedure in this case was closed and the case was reserved for judgment.
56 The applicant claims that the General Court should:
– annul the implicit rejection decision and the explicit rejection decision;
– order the Commission to pay the costs.
57 The Commission claims that the General Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
IV. Law
58 At the hearing, the General Court having noted that the applicant, who had duly been given notice to attend the hearing, within the meaning of Article 108(1) of the Rules of Procedure, was not represented, the applicant, in person, requested that Article 148(5) of the Rules of Procedure apply.
A. Application of Article 148(5) of the Rules of Procedure
59 According to Article 147(1) to (3) of the Rules of Procedure:
‘1. An application for legal aid may be made before the action has been brought or while it is pending.
2. The application for legal aid must be made using a form which is published in the Official Journal of the European Union and available on the Internet site of the Court of Justice of the European Union. Without prejudice to Article 74, the form must be signed by the applicant for legal aid or, if he is represented, by his lawyer. An application for legal aid submitted without the application form will not be taken into consideration.
3. The application for legal aid must be accompanied by all information and supporting documents making it possible to assess the applicant’s financial situation, such as a certificate issued by a competent national authority attesting to his financial situation.’
60 According to Article 148(4) of the Rules of Procedure, ‘any order granting legal aid may designate a lawyer to represent the person concerned if that lawyer has been proposed by the applicant in the application for legal aid and has agreed to represent the applicant before the General Court.’
61 Lastly, Article 148(5) of the Rules of Procedure provides that, ‘if the person concerned has not indicated his choice of lawyer in the application for legal aid or following an order granting legal aid or if his choice is unacceptable, the Registrar shall send a copy of the order granting legal aid and a copy of the application to the competent authority of the Member State concerned mentioned in the Rules supplementing the Rules of Procedure of the Court of Justice.’
62 In the present case, it should be noted that, pursuant to her application of 26 August 2016, the applicant was granted legal aid by order of 16 February 2017 of the President of the Fifth Chamber of the General Court.
63 In that order, the General Court designated the lawyer proposed by the applicant to represent her in this case for all the proceedings. The General Court accordingly granted the applicant legal aid and approved her choice of representative.
64 However, on 5 March 2018, the lawyer appointed by the General Court informed the Court that he no longer agreed to represent the applicant. Subsequently, the 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 Court. That is the context in which, at the hearing of 31 January 2019, the applicant, in person, requested that Article 148(5) of the Rules of Procedure apply.
65 In the context of an application for legal aid, Article 148(5) of the Rules of Procedure 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 Court.
66 It is apparent from Article 148(5) of the Rules of Procedure that the Registrar of the General Court sends the competent national authority the documents referred to in that article either where the person concerned, in his or her application for legal aid or once that application has been granted, has not proposed a lawyer, or where the Court has not approved that person’s choice.
67 Accordingly, where the person concerned has him or 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 the formal requirements set out in Article 147(2) of the Rules of Procedure, accompanied by the documents required under Article 147(3) of the Rules of Procedure so that the Court can examine whether the substantive requirements are still satisfied. 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.
68 Indeed, on the one hand, legal aid is a benefit provided free of charge to the person concerned in order effectively to exercise his or her right to judicial protection. It is therefore incumbent on the person concerned to take advantage of that benefit in a way that accords with the role of the lawyer’s function in the EU judicial system. A lawyer collaborates in the administration of justice and is required to provide, in full independence, and in the overriding interests of justice, such legal assistance as the client requires (order of 17 May 2017, Olivetel v EUIPO – Polyrack Electronic Aufbausysteme (POLY RACK), T‑28/17, not published, EU:T:2017:404, paragraph 11). The fact that a lawyer declines to represent a party in proceedings on grounds of behaviour by that party likely drastically to constrain the duties of a representative as defined above cannot therefore be regarded as a valid reason capable of justifying application of Article 148(5) of the Rules of Procedure.
69 As set out in paragraphs 62 and 63 above, in her application for legal aid made on 26 August 2016, the applicant proposed Mr Conrad as the lawyer representing her, and that choice was approved in the order of 16 February 2017.
70 It must therefore be held that Article 148(5) of the Rules of Procedure can apply in the present case solely once a new application for legal aid has been made in accordance with Article 147(2) and (3) of the Rules of Procedure.
71 However, first, the applicant has not lodged any such application with the General Court Registry. Secondly, in any event, in the light of the findings set out in paragraph 68 above, the circumstances that Mr Conrad describes (see paragraph 43 above) cannot be regarded as justifying the application of Article 148(5) of the Rules of Procedure. In that context, the fact that the applicant relies on her loss of confidence in Mr Conrad is not, of itself, sufficient to trigger the application of Article 148(5) of the Rules of Procedure, since nothing prevented her from appointing a different lawyer to represent her.
72 As the parties have duly lodged their pleadings in the written procedure and the oral procedure has been closed, the General Court considers itself to be sufficiently informed by the documents in the case file to adjudicate in the present case.
B. The claim for annulment
73 By her action, the applicant applies for the implicit rejection decision and the explicit rejection decision to be annulled.
1. The claim for annulment of the implicit rejection decision
74 It should be recalled that, under Article 22(1) and (5) of Regulation No 58/2003, the Commission is to take a decision on the administrative proceedings within two months of the date on which proceedings were instituted. Without prejudice to the Commission’s obligation to reply in writing giving grounds for its decision, the failure by the Commission to reply within that deadline is to be taken as implicit rejection of the proceedings.
75 In the present case, the Commission did not rule on the administrative appeal, brought by the applicant on 17 April 2016, within two months.
76 Accordingly, the fact that the Commission had not replied by 17 June 2016 is to be taken as an implicit rejection of the administrative appeal, against which an action for annulment may be brought before the General Court, in accordance with Article 22(5) of Regulation No 58/2003.
77 However, on 16 September 2016, that is to say, before the action in this case was brought, the Commission adopted a decision, which was notified to the applicant on 30 September 2016, explicitly rejecting the administrative appeal.
78 Therefore, by adopting the express rejection decision, the Commission withdrew the implicit rejection decision (see, by analogy, judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 45).
79 When an act is withdrawn, it disappears completely from the legal order of the Union (see order of 12 January 2011, Terezakis v Commission, T‑411/09, EU:T:2011:4, paragraph 16 and the case-law cited).
80 Thus, in that it seeks annulment of the implicit rejection decision, the action must be dismissed as inadmissible.
2. The claim for annulment of the explicit rejection decision
81 In support of her action, the applicant relies, in essence, on two pleas in law alleging infringement of her right to effective judicial protection (the first plea in law) and errors of law (the second plea in law).
(a) The first plea in law, alleging infringement of the applicant’s right to effective judicial protection
82 In the context of the first plea, the applicant asserts, in essence, that the Commission’s delay in dealing with her administrative appeal infringed her right to effective judicial protection.
83 She criticises the Commission for failing to make its decision on the administrative appeal within the time limit laid down in the third subparagraph of Article 22(1) of Regulation No 58/2003. According to the applicant, complying with that time limit is extremely important, since a decision made out of time is likely to mislead the persons to whom it is addressed, in particular as to the time limit for lodging an action.
84 In her view, the same applies where the Commission declares that it wishes to rule expressly on the administrative action once the time limit for bringing an action against the implicit rejection has already begun to run.
85 In that respect, first, it should be recalled that, according to Article 22(1) and (5) of Regulation No 58/2003, the Commission is to take a decision on the administrative proceedings within two months of the date on which proceedings were instituted. Without prejudice to the Commission’s obligation to reply in writing giving grounds for its decision, the failure by the Commission to reply within that deadline is to be taken as implicit rejection of the proceedings. An action for annulment of the explicit or implicit decision to reject the administrative appeal may be brought before the Court of Justice, in accordance with Article 263 TFEU.
86 Secondly, there is no legal principle according to which the administration forfeits its power to respond to an application, even outside the time limits laid down for that purpose. The mechanism of an implied refusal decision was established in order to counter the risk that the administration would choose not to reply to an application and escape review by the courts, not to render unlawful every decision which is late. The administration is required, in principle, to provide – even late – a reasoned response to every application by a citizen. That approach is consistent with the function of the mechanism of the implied refusal decision, which is to enable citizens to challenge inaction on the part of the administration with a view to obtaining a reasoned response (see, by analogy, judgment of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 59).
87 Thirdly, the requirement that there must be review by the courts is a general principle of EU law that flows from the constitutional traditions common to the Member States, and which is also enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. The right to an effective remedy has also been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union.
88 Accordingly, in the present case, by adopting the explicit rejection decision, the Commission cannot have infringed the applicant’s right to effective judicial protection, even though it adopted the decision after expiry of the two-month delay given to the Commission in which to rule on the administrative proceedings, under the third subparagraph of Article 22(1) of Regulation No 58/2003.
89 Indeed, the explicit rejection decision informs the applicant that she can apply for annulment of that decision in the context of an action for annulment, under Article 263 TFEU, and such an action was brought within the prescribed time limits, since the application was lodged on 26 October 2016, that is to say, less than two months after the explicit rejection decision was notified, on 30 September 2016.
90 The first plea in law should therefore be rejected as being unfounded.
(b) The second plea in law, alleging errors of law
91 The second plea in law has two parts.
(1) The first part, alleging unlawful application of the barring clause
92 In the first part, the applicant asserts, in essence, that the explicit rejection decision should be annulled because the Commission failed to correct unlawfulness that vitiated the ERCEA’s rejection decision, which, she alleges, based rejection of the grant application on, inter alia, evaluation of an earlier grant application for the 2015 call for proposals in category C, when there was in fact an action pending before the General Court relating to that evaluation.
93 It should be borne in mind that, although the ERCEA rejection decision was based on several grounds, that is to say, principally, the fact that there was no valid commitment letter from a host institution and, in the alternative, the barring clause, the explicit rejection decision is based solely on the first of those grounds.
94 Accordingly, even assuming that the second of those grounds of the ERCEA rejection decision was incorrect, that ground is nevertheless not a ground of the contested decision, and the first part of the second plea in law must therefore be rejected as ineffective.
(2) The second part, alleging incorrect assessment of whether the grant application was eligible
95 In the second part, the applicant argues that she needed neither a host institution nor a commitment letter in order to submit her grant application.
96 In the first place, she claims that she did produce a valid commitment letter, since nothing in the University’s letter of 30 January 2015, annexed to the grant application, suggested that the letter related only to the 2015 call for proposals.
97 However, in the present case, it is clearly apparent from the University’s commitment letter of 30 January 2015, specifically the subject matter of that letter, that the University committed itself to act as a host institution exclusively for the 2015 call for proposals.
98 In any event, as the Commission correctly notes, the University withdrew the grant application twice and declared that it was not available as a host institution for the project supported by the applicant (see paragraphs 18 to 20 above).
99 The applicant’s argument should therefore be rejected.
100 In the second place, the applicant claims that the University was not entitled to withdraw its agreement unilaterally after the time limit for making grant applications had expired. According to the applicant, the ERC rules for submission and evaluation contain no power to do so.
101 However, that reasoning is based on a false premiss, that is to say, that the University expressed its agreement to the grant application.
102 In actual fact, the applicant submitted her grant application with no valid commitment letter from the University, which furthermore, by letter of 30 November 2015, informed the ERCEA that it was not available as a host institution for the project put forward by the applicant.
103 Accordingly, since there was no valid commitment and a fortiori given that the University twice acted to withdraw the grant application, the applicant cannot validly argue that the University could not withdraw its agreement once the time limit for making the grant application had expired.
104 In the third place, the applicant claims that she was entitled to submit an application as an individual.
105 In that respect, it is admittedly apparent, from footnote 15 to the ERC rules for submission and evaluation, that, ‘exceptionally, the [principal investigator] may himself/herself act as the applicant legal entity, if he/she is acting in the capacity of the legal entity in his/her own right.’
106 However, in the present case, on the one hand, the applicant used the University’s identity code when she submitted her grant application.
107 On the other hand, although the applicant did indeed request a personal identity code, she requested it only after expiry of the time limit for submitting the grant application, and it therefore could not be used for that purpose.
108 Furthermore, the grant application was made on behalf of the University, not on behalf of the applicant, and the applicant should therefore, before submitting her application, have obtained the University’s agreement.
109 The applicant’s argument should therefore be rejected.
110 In the fourth place, the applicant states that the ERCEA had a duty to ask her for clarifications about her grant application, in accordance with section 2.3 of the ERC rules for submission and evaluation, and to give her an opportunity to find a different host institution when it became apparent, in the light of the University’s letter of 30 November 2015, that the commitment letter from that University did not relate to the 2016 call for proposals. In her view, automatically to reject the grant application is incompatible with the procedural provisions of the ERC Work Programme 2016.
111 In that respect, first, it is indeed apparent from Article 96(2) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), to which section 2.3 of the ERC rules for submission and evaluation refers, that, ‘where, due to an obvious clerical error on the part of the applicant or tenderer, the applicant or tenderer omits to submit evidence or to make statements, the evaluation committee or, where appropriate, the authorising officer responsible shall, except in duly justified cases, ask the applicant or tenderer to provide the missing information or clarify supporting documents’ and that ‘such information or clarifications shall not substantially change the proposal or alter the terms of the tender.’
112 Secondly, Article 56a of the ERC Model Grant Agreement, to which the applicant refers, in essence, in her reply, envisages the situation of a change in host institution during the funding period.
113 However, in the present case, the applicant cannot criticise the ERCEA for not allowing her to change the host institution from 30 November 2015.
114 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. That issue therefore does not fall within the concept of an ‘obvious clerical error’ and is therefore outside the scope of application of section 2.3 of the ERC rules for submission and evaluation.
115 Furthermore, the situation that Article 56a of the ERC Model Grant Agreement envisages concerns not a change of host institution during the procedure to evaluate grant applications, but a change during the period covered by the grant.
116 The applicant therefore cannot criticise the ERCEA for not allowing her to find a new host institution, and the second part of the second plea in law should therefore be rejected.
117 It is apparent from the foregoing that the action should be dismissed as inadmissible, in so far as it seeks annulment of the implicit rejection decision consisting of the Commission’s failure to respond to the administrative appeal lodged by the applicant, and as unfounded, in so far as it seeks annulment of the Commission’s decision of 16 September 2016.
Costs
118 According to Article 149(5) of the Rules of Procedure, where the recipient of the legal aid is unsuccessful, the General Court may, in ruling as to costs in the decision closing the proceedings, if equity so requires, order that one or more parties should bear their own costs or that those costs should be borne, in whole or in part, by the cashier of the General Court by way of legal aid.
119 In the present case, in a situation in which the applicant was a recipient of legal aid and she was unsuccessful, equity requires that each party to these proceedings bears its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders each party to bear its own costs.
Gratsias | Labucka | Ulloa Rubio |
Delivered in open court in Luxembourg on 11 June 2019.
[Signatures]