ORDER OF THE GENERAL COURT (Seventh Chamber)
1 October 2013 (*)
(Action for annulment – Financing by the European Union of certain projects in Tunisia, in the framework of the EuropeAid programme – Development of an integrated IT system for the Tunisian judiciary – Recovery by the Commission of debts payable to Tunisia by a third party – Debit note – Acts inseparable from the contract – Act not open to challenge – Inadmissible)
In Case T‑554/11,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, M. Dermitzakis, and N. Theologou, lawyers,
applicant,
v
European Commission, represented by A. Bordes and S. Bartelt, acting as Agents,
defendant,
APPLICATION for annulment of the Commission’s decision refusing to settle sums allegedly payable and requiring repayment of the sum of EUR 281 270.00 paid in the framework of the implementation of the contract EuropeAid/124378/D/SER/TN (No 2007/145-464), communicated to the applicant by letter dated 8 August 2011 (C&F/2011/D/001101), and also of debit note 3241108036, received by the applicant on 17 August 2011, and of all the Commission’s related decisions,
THE GENERAL COURT (Seventh Chamber),
Composed, at the time of the deliberation, of A. Dittrich (Rapporteur), President, I. Wiszniewska-Białecka and M. Prek, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 In December 2005, the European Community and the Tunisian Republic concluded a finance agreement on the basis of Council Regulation (EC) No 1488/96 of 23 July 1996 on financial and technical measures to accompany (MEDA) the reform of economic and social structures in the framework of the Euro-Mediterranean partnership (OJ 1996 L 189, p. 1), as amended by Council Regulation (EC) No 2698/2000 of 27 November 2000 (OJ 200 L 311, p. 1). That object of that agreement was the financing by the Community of a project to support the modernisation of the judicial system in Tunisia.
2 In accordance with Article 53c of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’), as amended by Council Regulation (EC) No 1525/2007 of 17 December 2007 (OJ 2007 L 343, p. 9), the project to support the modernisation of the judicial system in Tunisia was implemented by the Commission of the European Communities under decentralised management, which means that the implementation tasks were delegated to the Tunisian Republic. It was provided that the project would be completed on behalf of the Tunisian Republic by the Tunisian Ministry of Justice and Human Rights (‘the Tunisian Ministry of Justice’).
3 The applicant is a company active in the information technology sector.
4 In November 2007, following a call for tenders (EuropeAid/124378/D/SER/TN), the Tunisian Ministry of Justice awarded contract No 2007/145-464 (‘the contract’) concerning the development of an integrated information system for the Tunisian judiciary.
5 Under Article 29.1, Option 1, of the general contract conditions, the contracting authority is to pay any six-monthly instalments and also final payment on certain conditions, including receipt by the contracting authority of an invoice accompanied by a progress report or a final report and an expenditure verification report, subject to approval of those reports in accordance with Article 27 of the general contract conditions. Under Article 27.1 of those conditions, approval by the contracting authority of reports and documents drawn up and forwarded by the consultant is to certify that they comply with the terms of the contract.
6 Under Article 31.1 of the general contract conditions, the consultant is to repay to the contracting authority any amounts paid to it in excess of the final amount due.
7 The applicant received an advance payment of EUR 1 030 200.
8 In April 2008 the Tunisian Ministry of Justice froze the contract owing to a dispute between the parties. A conciliation process took place before the Commission between April and June 2008, in accordance with Article 40 of the general contract conditions. The project was resumed in July 2008. On 19 November 2008 the applicant submitted a progress report and an invoice for EUR 493 500 for a first six-month period, from November 2007 until May 2008.
9 By letter of 5 March 2009 the Tunisian Ministry of Justice informed the EU Delegation in Tunisia that it approved the progress report apart from certain services provided by the applicant. Consequently, the Commission paid the applicant only EUR 465 230 instead of the EUR 493 500 claimed.
10 For a second six-month period, from June 2008 until November 2008, the applicant issued an invoice for EUR 1 133 080. By letter of 15 October 2009 the EU Delegation in Tunisia informed the applicant that payment of its second invoice was suspended on the ground that the progress report had not been approved by the Tunisian Ministry of Justice in its capacity as contracting authority.
11 For a third six-month period, from December 2008 until May 2009, the applicant issued an invoice for EUR 1 560 630. In response, the Tunisian Ministry of Justice informed the applicant, by letter of 22 October 2009, that the progress report relating to that invoice was not approved. Consequently, the Commission made no payment in respect of that invoice.
12 By letters of 15 October and 14 December 2009, addressed to the applicant, the Tunisian Ministry of Justice suspended and eventually cancelled the contract, on the ground that the applicant had not fulfilled its contractual obligations.
13 A new conciliation meeting was held on 15 June 2010 at the premises of the EU Delegation in Tunis. By letter of 29 July 2010 the Commission terminated the conciliation as it proved impossible to reach an amicable settlement.
14 By letter of 29 March 2011, the EU Delegation in Tunisia informed the applicant that it proposed to request the recovery of the sum of EUR 281 270, being the difference between the sum received by the applicant (EUR 1 495 430) and the amount approved by the Tunisian Ministry of Justice (EUR 1 214 160).
15 By letter of 20 April 2011 to the EU Delegation in Tunisia, the applicant observed that the sum fixed by the Tunisian Ministry of Justice was arbitrary. The applicant further observed that the contract was a ‘fee-based contract’ and that accordingly, all the services which it had provided had to be paid for. It therefore requested the Commission to pay to it the unpaid amounts.
16 In its reply of 18 May 2011, the EU Delegation in Tunisia informed the applicant that it was for the Tunisian Ministry of Justice to carry out an estimate of the amounts payable and that it was for the applicant to state its position to the Tunisian Ministry of Justice concerning the amounts payable to it.
17 By letter dated 8 August 2011 (C&F/2011/D/001101), received by the applicant on 17 August 2011, the EU Delegation in Tunisia sent the applicant debit note No 3241108036 (‘the debit note’), claiming the amount of EUR 281 270 from the applicant.
18 On 17 August 2011 the applicant requested the Commission, by email and by fax, to recover the sums demanded by setting them off against the amounts payable to the applicant under other arrangements. In a letter of 26 August 2011, the Commission refused to do so and requested the applicant to pay the amount demanded by 31 August 2011 at the latest, failing which it would activate the applicant’s bank guarantee. By a bank transfer of 26 August 2011, the applicant paid the amount of EUR 281 270.
Procedure and forms of order sought
19 By application lodged at the Court Registry on 18 October 2011, the applicant brought the present action.
20 The applicant claims that the Court should:
– annul the Commission’s decision refusing to pay the sums payable to the applicant in implementation of contract EuropeAid‑124378/D/SER/TN (No 2007/145-464), communicated to the applicant by letter of 8 August 2011 (C&F/2011/D/001101), and debit note No 3241108036, and also the relevant subsequent decisions of the Commission;
– order the Commission to pay the costs and other costs and expenses incurred by the applicant in connection with the present action.
21 The Commission contends that the Court should:
– dismiss the applicant’s application for annulment of the debit note sent by the Commission on 8 August 2011 in order to recover the amount of EUR 281 270 as inadmissible or as manifestly unfounded;
– in so far as the applicant claims what it alleges to be outstanding payments together with its action for annulment, reject that claim as inadmissible;
– order the applicant to pay the costs.
Law
22 Under Article 113 of its Rules of Procedure the Court may at any time, even of its own motion, consider whether there exists any absolute bar to proceeding with an action, and is to give its decision in that respect in accordance with Article 114(3) and (4) of those rules.
23 Under Article 114(3) of the Rules of Procedure, the remainder of the proceedings are to be oral unless the Court decides otherwise.
24 In the present case the Court considers that it has sufficient information from the file and decides that there is no need to hear oral submissions from the parties.
Arguments of the parties
25 Although it has not formally submitted a plea of inadmissibility on the basis of Article 114 of the Rules of Procedure, the Commission maintains that the action for annulment is manifestly inadmissible, on the ground that the debit note forms part of the contractual relations between the Tunisian Ministry of Justice and the applicant and is therefore not among the measures referred to in Article 288 TFEU annulment of which may be sought before the Court.
26 In so far as the applicant requests the Court to annul ‘the decision to refuse to execute the applicant’s due payments’, the Commission disputes, moreover, the applicant’s assertion that the debit note contains an element related to the refusal of any allegedly outstanding payment. That note does not contain an implicit decision to refuse payment of any allegedly outstanding sum. Such a refusal would have to form the subject-matter of a separate Commission decision. In that regard, the applicant has failed to substantiate its application.
27 The applicant contends that its action is admissible. First, the Commission cannot in any event be considered to be a party to the contract with the Tunisian Ministry of Justice and its role is purely administrative. Nor can it be denied that the debit note was adopted on the basis of the Financial Regulation and that it is therefore a decision that can be challenged before the Court.
28 Second, the applicant maintains that in deciding in the debit note that the applicant must repay the sum of EUR 281 270, the Commission at least implicitly adopted a decision whereby it refused to pay the outstanding amounts payable to the applicant.
Findings of the Court
29 Under Article 263 TFEU, the Courts of the European Union review the legality of acts of the institutions intended to produce legal effects vis-à-vis third parties by bringing about a distinct change in their legal position. That jurisdiction concerns only the acts referred to by Article 288 TFEU which the institutions must adopt under the conditions laid down in the Treaty. By contrast, measures adopted by the institutions in a purely contractual context from which they are inseparable are, by their very nature, not among the acts covered by Article 288 TFEU, annulment of which may be sought before the Courts of the Union pursuant to Article 263 TFEU (orders of 21 October 2011 in Case T‑335/09 Groupement Adriano, Jaime Ribeiro, Conduril v Commission, ECR II-7345, paragraphs 24 to 26, and of 6 September 2012 in Case T‑657/11 Technion and Technion Research & Development Foundation v Commission, ECR II-0000, paragraphs 33 to 35 and the case-law cited).
30 An act adopted by an institution within a contractual framework must be regarded as severable from that framework if it was adopted by that institution in the exercise of its prerogatives as a public authority (order of 12 October 2011 in Case T‑353/10 Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, ECR II-7213, paragraph 28). In that regard, the fact that the Commission safeguards the contractual rights of a third party, but without altering those rights unilaterally, does not constitute the exercise of its prerogatives as a public authority (see, to that effect, order in Groupement Adriano, Jaime Ribeiro, Conduril v Commission, paragraph 33).
31 In so far as the applicant’s first head of claim refers to the letter dated 8 August 2011 ‘and’ the debit note, it must be stated that that letter has no autonomous scope by reference to the debit note. That letter is merely the covering letter sent with the debit note in which the EU Delegation in Tunisia drew the applicant’s attention to the attached debit note and requested it do take the necessary steps to ensure that the amount of EUR 281 270 was returned to the Commission. It should be borne in mind that the applicant maintains that, by the debit note, the Commission not only demanded repayment of the sum of EUR 281 270 but also implicitly refused to pay the outstanding amounts payable to the applicant. The applicant’s first head of claim must therefore be understood as meaning that the applicant is requesting the court to annul the debit note, first, in so far as it contains the Commission’s demand for payment of EUR 281 270 and, second, in so far as it implicitly contains the refusal to pay the outstanding amounts payable to the applicant. Third, the applicant requests the Court to annul ‘all the relevant subsequent decisions of the Commission’.
The request to annul the debit note in so far as it contains the Commission’s demand for payment of EUR 281 270
32 As regards the first part of the first head of claim, it must be stated that in demanding repayment of the sum of EUR 281 270, the Commission did not rely on its prerogatives as a public authority, but merely safeguarded the contractual rights of the Tunisian Ministry of Justice, on whose behalf it acted, but without unilaterally altering those rights.
33 The Commission’s demand for repayment of the EUR 281 270 is based on Article 31.1 of the general contract conditions, which provides that the consultant is to repay to the contracting authority any amounts paid in excess of the final certified value due. In its letter of 29 March 2011, the EU Delegation in Tunisia informed the applicant that the Commission intended to recover the sum of EUR 281 270 ‘in application of Article 31.1’ of the general contract conditions.
34 The Commission’s demand for repayment of the excess payments made is therefore based on contract. Admittedly, the person entitled to the excess payments made to the applicant is the Tunisian Ministry of Justice and not the Commission. Where the Commission recovers the excess payments, it is therefore acting solely on behalf of the Tunisian Ministry of Justice.
35 Contrary to the applicant’s assertion, however, neither the fact that the Commission is not itself a party to the contract nor the fact that the Commission acted on the basis of the Financial Regulation can justify the claim for repayment of the excess payments being characterised as a measure coming within the exercise of the Commission’s prerogatives as a public authority. The right to claim repayment of the excess payments is a right arising under the contract. The fact that that right is enforced not by the right-holder, namely, in the present case, the Tunisian Ministry of Justice, but by the Commission acting on the latter’s behalf, does not call the contractual nature of the right into question, as the Commission does not create or unilaterally modify that right.
36 In that regard, it should be observed that, under Article 71(2) of the Financial Regulation, any amount receivable that is identified as being certain, of a fixed amount and due must be established by a recovery order to the accounting officer followed by a debit note sent to the debtor. Under Article 72(2) of that regulation, the institution may formally establish an amount as being receivable from persons other than States by means of a decision which is to be enforceable within the meaning of Article 299 TFEU.
37 Furthermore, it should be observed that Article 78(3) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) provides:
‘3. The debit note shall be to inform the debtor that:
(a) the Communities have established the amount receivable;
(f) if, after all those steps have been taken, the amount has not been recovered in full, the institution shall effect recovery by enforcement of a decision secured either in accordance with Article 72(2) of the Financial Regulation or by legal action.’
38 It follows from those provisions that, in sending the debit note to the applicant, the Commission did not unilaterally modify the rights and obligations of the parties to the contract. Those provisions state that the debit note serves merely to establish an existing debt and it therefore does not unilaterally modify either the level or the nature of the debt, which is merely established. In the present case, the nature and the level of the debt are determined solely by the rights and obligations arising under the contract. Furthermore, it follows from Article 78(2) of the Financial Regulation, read with Article 78(3)(f) of Regulation No 2342/2002, which refers to an enforceable decision taken separately from and subsequently to the debit note in the recovery procedure, that the debit note is not enforceable (see, to that effect and by analogy, Case T‑260/04 Cestas v Commission [2008] ECR II‑701, paragraph 76). Consequently, the communication of the debit note cannot be regarded as an exercise of the Commission’s prerogatives as a public authority.
39 The applicant refers to Case T‑231/04 Greece v Commission [2007] ECR II‑63, paragraphs 73 and 74. That case concerned the recovery by the Commission of sums payable by the Hellenic Republic and covered by the Community budget, although related to the common foreign and security policy. The EU Treaty, in the version arising from the Treaty of Amsterdam, made no provision for any jurisdiction of the Courts of the Union in the context of the provisions on the foreign and security policy. The Court considered, however, that recovery by the Commission of the sums payable by the Hellenic Republic was an act open to challenge, since such recovery was based on the Financial Regulation.
40 However, it must be emphasised that the case-law cited by the applicant cannot be applied to the present case. As the Commission has correctly submitted, that case-law relates to a situation in which, in the absence of underlying contractual relations, the Commission acted in the exercise of its prerogatives as a public authority, so that the act of recovery was open to challenge in an action for annulment. In the present case, conversely, the Commission adopted the debit note at issue not in the exercise of its prerogatives as a public authority, but in order to safeguard the contractual rights of the Tunisian Ministry of Justice, on whose behalf it acted.
41 Accordingly, there is no reason to conclude that the Commission acted in the present case in the exercise of its prerogatives as a public authority when it demanded repayment of the sum of EUR 281 270. On the contrary, that demand forms an inseparable part of the contractual relations between the applicant and the Tunisian Ministry of Justice. The first part of the applicant’s first head of claim must therefore be declared inadmissible, owing to the absence of a challengeable act.
The request to annul the debit note in so far as it contains the alleged implicit refusal to settle the sums payable to the applicant
42 As regards the second part of the applicant’s first head of claim, there is no need, in the present case, to resolve the question whether the debit note contains an implicit refusal to make the payments demanded by the applicant or whether the applicant has sufficiently substantiated its application in that respect. It is quite clear that when the Commission declined to pay the applicant the additional payments demanded for its services, it did not rely on its prerogatives as a public authority.
43 The applicant’s claim for additional payments for its services is based on Article 29.1, Option 1, of the general contract conditions. According to that article, the contracting authority is to make payments on certain conditions. The applicant’s claim for additional payments is therefore contractual in nature. The person liable for payments for the applicant’s services is the Tunisian Ministry of Justice and not the Commission. Where the Commission makes payments or refrains from doing so it acts on behalf of the Tunisian Ministry of Justice. However, that circumstance cannot call into question the contractual nature of the applicant’s claim and the Commission’s refusal to grant it. By refraining from paying to the applicant the additional payments demanded, the Commission did not unilaterally modify the applicant’s contractual rights. It was still open to the applicant to rely on those rights as against the Tunisian Ministry of Justice.
44 Accordingly, there is no reason to conclude that the Commission acted in the present case in the exercise of its prerogatives as a public authority when it refrained from paying the applicant the additional payments demanded. On the contrary, that refusal forms an inseparable part of the contractual relations between the applicant and the Tunisian Ministry of Justice. The second part of the applicant’s first head of claim must therefore also be declared admissible owing to the absence of a challengeable act.
The request for annulment of all the relevant subsequent decisions of the Commission
45 It must be held that the applicant does not specify what measures are referred to by the third part of its first head of claim and submits no argument in support of its request. Consequently, the applicant’s action must be dismissed as inadmissible in so far as it seeks annulment of ‘all the relevant subsequent decisions of the Commission’ (see, to that effect, Case T‑17/09 Evropaïki Dynamiki v Commission [2012] ECR II‑0000, paragraphs 31 and 32).
Conclusion
46 In the light of all of the foregoing, the action must be dismissed in its entirety as inadmissible.
Costs
47 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, in addition to bearing its own costs, shall pay the costs incurred by the European Commission.
Luxembourg, 1 October 2013.