ORDER OF THE GENERAL COURT (Fifth Chamber)
9 September 2021 (*)
(Arbitration clause – Sixth and Seventh Framework Programmes for research, technological development and demonstration activities (2002-2006 and 2007-2013) – ‘Horizon 2020’ Framework Programme for Research and Innovation (2014-2020) – Grant agreements – Set-off of claims – Identification of the defendant – Failure to comply with procedural requirements – Article 76(d) of the Rules of Procedure – Manifest inadmissibility)
In Case T‑881/19,
GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG, established in Munich (Germany), represented by C. Mayer, lawyer,
applicant,
v
European Commission, represented by L. André, M. Ilkova, L. Mantl, and A. Katsimerou, acting as Agents,
defendant,
APPLICATION under Article 272 TFEU seeking an order that the Commission reimburse the eligible costs incurred by the applicant, first, between August 2015 and April 2016 and, secondly, during the period of the preliminary insolvency proceedings, namely EUR 1 680 681.82, plus interest of EUR 76 552.60, in respect of the grant agreements awarded under the sixth and seventh framework programmes for research, technological development and demonstration activities and the ‘Horizon 2020’ Framework Programme for Research and Innovation,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann, President, U. Öberg (Rapporteur) and O. Spineanu-Matei, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG, is a company established under German law specialising in the administrative management of collaborative research projects in the health sector. It has participated in various projects in the context of the following framework programmes:
– the framework programme established by Decision No 1513/2002/EC of the European Parliament and the Council of 27 June 2002 concerning the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing towards the creation of the European Research Area and to innovation (2002 to 2006) (OJ 2002 L 232, p. 1);
– the framework programme established by 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 framework programme established 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 (OJ 2013 L 347, p. 104).
2 In the context of those framework programmes, the European Commission signed grant agreements with consortia of beneficiaries such as universities, scientific institutions, and small and medium-sized enterprises. Those consortia were responsible for carrying out the scientific work and were administered by coordinators.
3 The applicant took part in 59 research projects financed by the European Union budget under grant agreements concluded within those framework programmes, 50 of which were concluded with the Commission, three with the Research Executive Agency (REA), established by Commission Implementing Decision 2013/778/EU of 13 December 2013 (OJ 2013 L 346, p. 54), and six with the Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines, established by Council Regulation (EC) No 73/2008 of 20 December 2007 (OJ 2008 L 30, p.38, ‘the IMI Joint Undertaking’).
4 In that context, the applicant did not carry out any research work, but performed a support role for various coordinators, in particular, in financial management and control, legal assistance, scientific coordination, communication and event organisation. To that end, the applicant signed several grant agreements with the Commission and thereby benefited from payments for the purposes of pre-financing the costs relating to the performance of its administrative tasks.
5 Following two audits concerning the costs declared by the applicant and an exchange of various documents, in particular the Commission’s email of 29 July 2015, by which the applicant was informed of the suspension of all payments by the Commission to the applicant, and an email of 6 August 2015, by which the applicant objected to that measure, the Commission issued Debit Note No 3241514917 on 2 December 2015 requesting the applicant to pay the total sum of EUR 1 770 417.29, with a view to repayment of the debt resulting from those audits. Subsequently, the Commission proceeded to recover the debt by offsetting and sent the applicant a series of seven set-off letters, by which it deducted, from the amount of the debt referred to in the debit note, the amounts of the suspended payments and, in so doing, reduced the amount of the claim from EUR 1 770 417.29 to EUR 587 774.81.
6 Following the lodging of the application on 14 January 2016 in the case which gave rise to the judgment of 25 September 2018, GABO:mi v Commission (T‑10/16, not published, EU:T:2018:600), the Commission pursued the recovery by offsetting of the debt referred to in Debit Note No 3241514917. It thus reduced the amount of the claim from EUR 1 770 417.29 to EUR 402 211.51.
7 Following the applicant’s request for insolvency proceedings to be initiated, the Amtsgericht München (Local Court, Munich, Germany) appointed a preliminary liquidator by decision of 27 April 2016. Nevertheless, the applicant continued to provide services under the grant agreements at issue until the end of the preliminary insolvency proceedings on 30 June 2016.
8 The action in the case which gave rise to the judgment of 25 September 2018, GABO:mi v Commission (T‑10/16, not published, EU:T:2018:600) was based, inter alia, on Article 272 TFEU and related in that regard, in essence, to the alleged unlawfulness of the recovery of the debt carried out by the Commission by means of nine set-off letters, issued in the period from 16 December 2015 to 3 May 2016.
9 In the judgment of 25 September 2018, GABO:mi v Commission (T‑10/16, not published, EU:T:2018:600), the Court held that the Commission’s claim against the applicant, referred to in Debit Note No 3241514917, was unfounded as regards the declared expenses relating to the ‘central travel/meeting budget’ and the liquidated damages relating thereto, and dismissed the action as to the remainder.
10 Following the judgment 25 September 2018, GABO:mi v Commission (T‑10/16, not published, EU:T:2018:600), the applicant requested the Commission, by letter of 29 July 2019, to pay it the sum of EUR 1 680 681.81, together with interest calculated in accordance with Paragraph 247 of the German Civil Code. In that application for payment, the applicant claimed that, under German insolvency law, the set-offs made by the Commission were ineffective.
11 The Commission, following correspondence between it and the applicant, acknowledged that, in accordance with the judgment of 25 September 2018, GABO:mi v Commission (T‑10/16, not published, EU:T:2018:600), the applicant was entitled to EUR 274 248.27, plus default interest. That the judgment had that effect is not disputed by the applicant.
12 By letter of 3 December 2019, the Commission informed the applicant that since it still owed the Commission a total amount of EUR 1 927 495.27 because of the excess pre-financing paid in connection with various projects, it would recover by means of set-off an amount corresponding to the sum of EUR 274 248.27.
Procedure and forms of order sought
13 By application lodged at the Court Registry on 31 December 2019, the applicant brought the present action.
14 On 25 January 2021, the applicant submitted a request for a hearing.
15 The applicant claims that the Court should:
– order the Commission to pay EUR 1 680 681.82 plus interest of EUR 76 552.60 to Mr Ivo-Meinert Willrodt, in his capacity as liquidator of the applicant;
– order the Commission to pay the costs.
16 The Commission contends that the Court should:
– dismiss the action as inadmissible and, in any event, as unfounded;
– order the applicant to pay the costs.
Law
17 Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
18 In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings, even though the applicant has asked the Court to hold a hearing.
19 Without formally raising a plea of inadmissibility, the Commission contends that the action is inadmissible, relying on four pleas of inadmissibility to that effect. Those pleas of inadmissibility concern the Commission’s lack of standing to bring proceedings as defendant concerning the applicant’s claims in respect of seven grant agreements, a lack of precision of the subject matter of the dispute, that there are no heads of claim concerning the claim for payment of the ‘additional amount’ and the inadmissibility of the challenges to the set-off decisions.
20 As to the substance, the applicant relies on two pleas in law. The first alleges that the applicant provided services under the framework programmes in question between 1 August 2015 and 30 June 2016 and that it thus had the right to be reimbursed for the costs incurred in meeting the eligibility criteria laid down in the grant agreements at issue. The second plea alleges that the set-off decisions made by the Commission are without effect under the applicable law, namely, according to the applicant, German insolvency law or, in the alternative, EU law, supplemented, where appropriate, by Belgian law.
The Commission’s lack of standing to bring proceedings as defendant
21 In the first place, the Commission claims that it only entered into 31 of the 38 grant agreements referred to in the application. The CANCER-ID, DIACAT, EU-AIMS, EUC²LID, EUROFORGEN, ONCOTRACK and RADAR-CNS grant agreements were signed between, on the one hand, the applicant and, on the other hand, the REA or the IMI Joint Undertaking. Both of them have legal personality and are, therefore, the holders of the rights and obligations arising from those seven grant agreements.
22 Consequently, the Commission does not have standing to bring proceedings as defendant as regards the applicant’s claims under the seven grant agreements referred to above. The action should be dismissed as inadmissible in so far as it relates to those claims, namely, in the total amount of EUR 436 463.31.
23 In addition, more specifically, as regards the set-offs made by the Commission in the case of the IMI Joint Undertaking, the Commission acted on behalf of that body. The Commission and the IMI Joint Undertaking agreed, by means of a service level agreement that, for reasons of profitability, the Commission’s accounting officer would also act as accounting officer for the IMI Joint Undertaking. The applicant does not provide any other argument or evidence to show that the Commission became a contracting party to the grant agreements concluded between the applicant and the IMI Joint Undertaking. Moreover, the set-offs were applied only between the claims and the debts relating to the IMI Joint Undertaking and, therefore, only in the context of the grant agreements concluded between the applicant and the IMI Joint Undertaking.
24 Moreover, as regards the REA, the delegation of tasks to an executive agency does not have the effect of making the Commission the signatory of an agreement between the applicant and the agency, or to make the Commission the defendant in an action for contractual liability. That conclusion cannot be called into question by the reference to the Commission in the letterhead to which the applicant refers. The REA is required to state expressly, in all contracts, grant agreements and relations with third parties, that it acts on behalf of the Commission (and therefore within the framework of delegated powers) in order to make the European Union’s participation in actions visible to the outside world. That does not alter the exclusive contractual liability of the REA as an executive agency with separate legal personality.
25 The applicant acknowledges that the REA and the IMI Joint Undertaking have separate legal personality from the Commission. However, if the Commission lacked standing to act as defendant, that would call into question the Commission’s own set-offs against the IMI Joint Undertaking’s alleged claims as the Commission would not have been allowed to declare a set-off under the applicable grant agreements. The fact that the Commission declared set-offs with regard to the IMI Joint Undertaking’s grant agreements showed that it clearly considered that ultimately it was the party behind those grant agreements.
26 As for the REA, it is, according to the applicant, decisive that the REA merely acts under a delegation from the Commission, which follows from 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), which is intended to give the Commission the possibility, in particular, of delegating certain tasks to other institutions. It is not without reason that recourse to an executive agency does not relieve the Commission of its responsibilities under the Treaties. The Commission itself acknowledged, in recital 2 of Commission Decision 2008/46/EC of 14 December 2007 setting up the ‘Research Executive Agency’ for the management of certain areas of the specific Community programmes People, Capacities and Cooperation in the field of research in application of Council Regulation (EC) No 58/2003 (OJ 2008 L 11, p. 9), that it could not and did not relinquish ‘control over, or ultimate responsibility for, activities managed by the said executive agencies’. Regulation No 58/2003 therefore extensively delegates certain tasks of the Commission. Furthermore, all the payment letters issued in connection with the DIACAT AND EUROFORGEN projects bear the Commission’s letterhead.
27 The Court finds that the action is based on arbitration clauses under Article 272 TFEU and that the applicant expressly opposed reclassification of the action. Therefore, the action may be brought only in respect of a party to the agreements in question.
28 Both the REA and the IMI Joint Undertaking have separate legal personality from the Commission and the grant agreements in question were signed on behalf of those entities, and not on behalf of the Commission.
29 In the present case, the applicant has not established that the Commission, by acting on behalf of the REA or the IMI Joint Undertaking in various respects, became a party to those grant agreements.
30 Consequently, the Commission does not have standing to bring proceedings as defendant as regards the grant agreements in question. Moreover, the fact that the REA’s implementation powers are delegated by the Commission does not have the effect of making the Commission a signatory to the agreement and defendant in an action for contractual liability (see, to that effect, order of 23 October 2019, Universität Koblenz-Landau v Commission and EACEA, T‑108/18, not published, EU:T:2019:768, paragraph 59).
31 Accordingly, the action is manifestly inadmissible in so far as it relates to the grant agreements referred to in paragraph 21 above.
Lack of precision of the subject matter of the proceedings
32 The Commission contends that, in any event, the application lacks precision as regards the subject matter of the proceedings and that it is, therefore, in accordance with the requirements of Article 76(d) and (e) of the Rules of Procedure, inadmissible.
33 According to the Commission, that lack of precision of the subject matter of the proceedings prevents it from defending itself and the Court from exercising its power of review.
34 The applicant submits, generally, that the Commission’s arguments in its defence show that it was able properly to defend itself. Furthermore, Article 76(d) of the Rules of Procedure, read in conjunction with Article 21 of the Statute of the Court of Justice of the European Union, merely requires ‘a summary of the pleas in law’.
35 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and Article 76(d) of the Rules of Procedure, the application must contain the subject matter of the dispute, the pleas in law and arguments relied on and a brief statement of those pleas in law.
36 Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without other supporting information (judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 90). In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see order of 27 March 2017, Frank v Commission, T‑603/15, not published, EU:T:2017:228, paragraph 38 and the case-law cited).
37 The application must, accordingly, specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (see judgment of 25 March 2015, Belgium v Commission, T‑538/11, EU:T:2015:188, paragraph 131 and the case-law cited; order of 27 November 2020, PL v Commission, T‑728/19, not published, EU:T:2020:575, paragraph 64).
38 Thus, the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea in law on which it relies, and the General Court is not obliged, because of the lack of structure of the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application. The risk would be to reconstruct that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary both to the principle of the sound administration of justice and the principle that the subject matter of an action is delimited by the parties and to the defendant’s rights of defence (order of 6 September 2019, Romańska v Frontex, T‑212/18, not published, EU:T:2019:581, paragraph 42). Lastly, the Court cannot substitute its own assessment for that of the applicant and attempt to seek and identify in the annexes the grounds on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 22 and the case-law cited).
39 In the present case, the action lacks clarity in its entirety, in that, despite the fact that the applicant claims not to dispute the validity of the set-off decisions and does not base its action on Article 263 TFEU, but on Article 272 TFEU, it nevertheless follows from its arguments, on several occasions, that it considers those set-off decisions to be ‘ineffective’, ‘without effect’ or ‘ void’ on account of the application of German insolvency law, which, in its view, justifies its action for payment. Therefore, it is apparent from its written pleadings that there is an inconsistency between the legal basis relied on and the arguments put forward.
40 As regards, more specifically, the Commission’s complaint that almost no reference is made to the clauses of the relevant grant agreements, it is clear that the applicant, in Annex A.23 to the reply, produced ‘all the relevant grant agreements’, without providing any explanation as to their contents or relevant parts. As there are more than 2 900 pages of text, which is largely repetitive, that documentation is, in practice, of no explanatory value.
41 The only specific and precise reference to the relevant clauses made by the applicant concerns Article ‘11.14.1 of the grant agreements [which] defines eligible costs to be actual costs (1), incurred by the beneficiary (2) during the duration of the project (3), determined according to the usual accounting and management principles and practices of the beneficiary (4), used for the sole purpose of achieving the objectives of the project and its expected results in a manner consistent with the principles of economy, efficiency and effectiveness (5), recorded in the accounts of the beneficiary (6) and indicated in the estimated overall budget annexed to the Grant Agreement (7)’.
42 Even if it is assumed that that definition of eligible costs is uniform for all the relevant grant agreements, it is clear that the dispute in the present case raises issues which are not governed under that clause, in particular as regards the procedures to be followed in order to recover the costs incurred from the coordinators of the projects in question or relating to the applicable provisions concerning the agreed reference periods, to which the costs claimed by the applicant related.
43 The Court finds that the contractual framework of those issues is otherwise not clarified in the applicant’s pleadings. The Commission’s complaint that there are no references to the relevant clauses of the grant agreements must therefore be upheld.
44 As regards the Commission’s complaint that the application is vague and unspecific as regards the amounts claimed by the applicant, the Commission contends that the application contains no explanation enabling it to understand how the various amounts set out in the two tables on pages 8 and 10 of the application were calculated. The tables set out in Annexes A.14 and A.15, although more detailed than those set out on pages 8 and 10 of the application, are no more clear in that regard.
45 According to the Commission, it is impossible for it to reconcile those amounts with the costs claimed by the applicant, amounts communicated to the Commission via the coordinators. The amounts communicated to the Commission and accepted by it do not correspond to the amounts claimed by the applicant in the present dispute.
46 Therefore, the Commission is not in a position to assess whether the costs claimed by the applicant, in the tables included as Annexes A.14 and A.15, are the costs that were communicated by the coordinators in connection with the projects in question. First, the applicant does not provide any details regarding the costs, but merely lists the costs allegedly incurred and claimed per project. Secondly, it lists the costs incurred during two periods, that is, between August 2015 and April 2016 and between May and June 2016. Those two periods do not correspond to the contractual reporting periods laid down for each project in question. The Commission cannot therefore assess whether the costs set out in Annexes A.14 and A.15 are in fact those that were communicated to the Commission and accepted by it.
47 The Court finds that the action relates to the payment of amounts allegedly owed by the Commission to the applicant under the grant agreements relied on for that purpose by the applicant, even though that is not expressly stated. The legal framework is therefore constituted by the grant agreements in question, which, according to those agreements, are supplemented by the relevant provisions of EU law or, where appropriate, Belgian law.
48 The essential elements of fact and law on which the action is based consist in turn of assertions concerning the two central circumstances of the dispute. First, in the light of the fact that the action is based on Article 272 TFEU, the applicant is under an obligation to identify the contractual clauses on which the Commission’s alleged payment obligation is based, in particular the terms concerning the procedures to be followed in order to claim the costs incurred from the project coordinators or the terms concerning the agreed reference periods, to which the costs claimed by the applicant refer. Secondly, the applicant is under an obligation to explain how the various amounts to which it refers were calculated.
49 It must be held that the action manifestly does not satisfy the requirements referred to in paragraphs 35 to 38 above. In addition to the fact that the action lacks consistency (see paragraph 39 above), the essential elements of fact and law on which it is based are not apparent from either the application or the reply.
50 The action must therefore be dismissed as manifestly inadmissible, without it being necessary to rule on the Commission’s other pleas of inadmissibility.
Costs
51 Under Article 134 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.
52 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG shall pay the costs.
Luxembourg, 9 September 2021.