Case T-353/10

Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro AE

v

European Commission

(Actions for annulment – Debit note – Objection of inadmissibility – Contractual nature of the dispute – Nature of the action – Act open to challenge)

Summary of the Order

1.      Actions for annulment – Action relating in reality to a contractual dispute – Annulment of a debit note issued by the Commission – No jurisdiction of the EU judicature – Inadmissibility

(Arts 263 TFEU and 288 TFEU)

2.      Actions for annulment – Action relating in reality to a contractual dispute – Reclassification of the action – Conditions

(Arts 263 TFEU and 272 TFEU; Rules of Procedure of the General Court, Art. 44(1)(c))

1.      Under Article 263 TFEU, the Courts of the European Union are to 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 by the Treaty in the exercise of their prerogatives as public authorities.

On the other hand, acts adopted by the institutions in a purely contractual context from which they are inseparable are, by their very nature, not among the measures covered by Article 288 TFEU, annulment of which may be sought pursuant to Article 263 TFEU.

An action concerning a debit note issued by the Commission pursuant to a contract binding it to the applicant may therefore validly be brought before the European Union judicature on the basis of Article 263 TFEU only if that note is intended to produce binding legal effects which go beyond those stemming from the contract and which involve the exercise of the prerogatives of a public authority conferred on the Commission in its capacity as an administrative authority.

(see paras 22-25)

2.      Where an action for annulment or an action for damages is brought before the Court when the dispute is, in point of fact, contractual in nature, the European Union judicature reclassifies the action, provided that the conditions for such a reclassification are satisfied.

However, when faced with a dispute which is contractual in nature, the European Union judicature considers itself unable to reclassify an action for annulment either where the applicant’s express intention not to base his application on Article 272 TFEU precludes such a 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.

(see paras 34-35)