Case T-335/09

Groupement Adriano, Jaime Ribeiro, Conduril – Construção, ACE

v

European Commission

(Action for annulment – MEDA I programme – Specific financing agreement – Authority given to the European Union to recover debts owed by a third party to the Kingdom of Morocco – Debit note – Reminder letter – Measures inseparable from the contract – Measure not subject to review – Inadmissibility)

Summary of the Order

Actions for annulment – Action relating in reality to a contractual dispute – Exercise of contractual rights by an institution in the name of and on behalf of one of the contractual parties – Lack of jurisdiction of the Community judicature – Inadmissibility

(Arts 230 EC and 249 EC)

Under Article 230 EC, the Community Courts 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 249 EC, which the institutions must adopt under the conditions laid down by 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 measures covered by Article 249 EC, annulment of which may be sought before the Community judicature pursuant to Article 230 EC.

However, the measure adopted by an institution in a contractual context must be considered as being severable from the latter where, first, the measure was adopted by that institution in the exercise of its own powers, and, second, it produces, by itself, obligatory legal effects capable of affecting the interests of its recipient against which, therefore, an action for annulment may be brought. Accordingly, an action for annulment brought by the addressee of the measure must be considered to be admissible. In that context, the ‘own powers of an institution’ must be understood as those deriving from the Treaties or secondary law which are part of its public power prerogatives and accordingly allow it to create or amend, unilaterally, rights and obligations for a third party. On the other hand, the exercise of contractual rights by an institution, if the Union has received authority to act in the name of and on behalf of one of the contractual parties, does not constitute exercise of its own powers.

(see paras 24-26, 32-33)