Case T‑387/09

Applied Microengineering Ltd

v

European Commission

(Fifth framework programme for research, technological development and demonstration — Contracts concerning the projects ‘Formation of a New Design House for MST’ and ‘Assessment of a New Anodic Bonder’ — Recovery of part of the financial contribution paid — Enforceable decision — Decision amending the contested decision during the proceedings — Legal basis of the action — Nature of the pleas put forward — Legitimate expectations — Duty to state reasons — Principle of sound administration)

Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012

1.      Actions for annulment — Action directed against an enforceable decision — Decision liable to be challenged on the basis of Article 230 EC — Admissibility — Pleas relating to terms of the contract and to the applicable national law — Inadmissibility

(Arts 230 EC, 238 EC, 249 EC and 256 EC)

2.      European Union law — Principles — Protection of legitimate expectations — Conditions — Precise assurances given by the authorities — Exchanges of information with the Commission before the signature of the contract not constituting a precise assurance or promise — Breach of the principle of the protection of legitimate expectations — None

3.      Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision relating to the recovery from a party of a financial contribution paid in the context of a research programme — Need to annex the audit report — None

(Art. 253 EC)

4.      European Union law — Principles — Principle of sound administration — Other party to a contract with the Commission not having informed the Commission of its change of address — Letters sent to the former address — Infringement of the principle of sound administration — None — New address mentioned in emails sent to an auditor and forwarded to the Commission — Expiry of the contractual period — No effect

(Charter of Fundamental Rights, Art. 41)

1.      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.

By contrast, the enforceable decisions with which Article 256 EC is concerned are, in the absence of any contrary indication in the EC Treaty, among those referred to in Article 249 EC, the justification for which can only be disputed before the court hearing the proceedings for annulment, on the basis of Article 230 EC. This is true, in particular, when an enforceable decision is adopted for the purposes of recovering a debt stemming from a contract concluded by an institution.

The European Union judicature must, when adjudicating on an action for annulment on the basis of the provisions of Article 230 EC, assess the lawfulness of the contested act in the light of the EC Treaty or of any rule of law relating to its application, and, thus, of European Union law. On the other hand, in the context of an action brought on the basis of Article 238 EC, an applicant can only complain that the institution party to the contract infringed the terms of the contract or of the law applicable to it.

Therefore, in an application for annulment brought against an enforceable decision, the pleas alleging infringement of the terms of the contract and of the applicable national law must be rejected as inadmissible.

(see paras 36, 38-41)

2.      See the text of the decision.

(see paras 57-62)

3.      The scope of the obligation to state reasons depends on the nature of the measure at issue and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the European Union judicature to review the lawfulness of the measure and the persons concerned to ascertain the reasons for the measure, so that they can defend their rights and ascertain whether or not the decision is well founded.

It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed not only with regard to its wording but also with regard to its context and all the legal rules governing the matter in question.

In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision.

Lastly, where a party was closely involved in the process by which the contested decision came about and is therefore aware of the reasons for which the administration adopted it, the scope of the obligation to state reasons will be defined by the context thus created by the party’s involvement in that process. In such a situation, the requirements of the case-law will be considerably eased.

Thus, where, by referring to an audit report, the Commission shows sufficiently clearly in a decision the reasons for which it decided to recover from a party the financial contribution paid in the context of a research programme, it enables the applicant to defend its rights before the European Union judicature and that latter to exercise its power of review over the lawfulness of that decision, without it having been necessary to attach that audit report as an annex to it.

(see paras 64-67, 72)

4.      The guarantees afforded by the European Union legal order in administrative proceedings include, in particular, the principle of sound administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, which entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case.

In the context of the recovery from a party of a contribution paid under a research programme, as regards the letter informing the applicant of the closure of the audit procedure, sent by registered delivery with acknowledgment of receipt to the address indicated by the applicant to the Commission, the Commission cannot be criticised for having followed this course of action given the applicant’s failure to notify the Commission of its change of address. In the first place, the sole fact that the contractual period had come to an end did not exempt the applicant from informing the Commission of its change of address as long as an audit procedure was taking place. In the second place, the mere reference to the applicant’s address in the signature of the emails which it sent to the auditor does not suffice for a finding that the Commission had been duly informed of the change of address, even if those exchanges of emails were forwarded by the auditor to the Commission.

(see paras 76, 80)